There are, in this country, a great number of decisions bearing upon the effect of an agreement by adjoining owners as to the boundary line between their lands, or of their recognition of a certain line as the boundary without any express agreement in relation thereto. These decisions are frequently most unsatisfactory in their discussion of the principles involved, and, purporting, as they variously do, to be based on principles of agreement, "acquiescence," "practical location," estoppel, or the statute of limitations, it is impossible to deduce from them any generally accepted rules upon the subject.

An agreement between adjoining owners as to the location of a boundary line, though merely oral, is not, it is generally conceded, invalid as being within the Statute of Frauds, provided the agreement is followed by actual or constructive possession by each of the owners up to the line so agreed upon, and provided, further, that the proper location of the line is uncertain or in dispute; the theory being that the agreement does not, in such case, involve any transfer of title to land, but merely an application of the language of the instruments under which the owners claim.60 On the other hand, it has been held that, if the boundary line promise of conflicting claims, and if the agreement embodies merely an attempt to locate the true line, and the parties suppose that this is accomplished as a result of the agreement, it may be subsequently shown that such attempted location was erroneous, and each party may occupy to the true line in case the statute of limitations has not run against him.63 In two states, however, this view appears to be subject to a qualification to the effect that a line which is actually marked upon the land by the parties in interest, and is thereafter acted on by them as the true line, is binding on them, although by mistake such line does not correspond in direction with the true line.64 Obviously the selection of a boundary line by adjoining owners, which it is agreed shall serve merely as a temporary line, until the correct line can be ascertained, is not binding beyond the terms of the agreement.65

545, 24 Pac. 916; Washington Co. v. Matteson, 11 R. I. 550; Jaggy v. Rooney, 61 Wash. 381, 112 Pac. 367.

60. Malones v. Mobbs, 102 Ark. 542, Ann. Cas. 1914A, 479, 145 S. W. 193, 146 S. W. 143; Young v. Blakeman, 153 Cal. 477, 95 Pac. 888; Lindsay v. Springer, 4 Har.

(Del.) 547; "Watrous v. Morrison, 33 Fla. 261, 39 Am. St. Rep. 139, 14 So. 805; Clark v. Hulsey, 54 Ga. 608; Idaho Land Co. v. Parsons, 3 Idaho 450, 31 Pac. 791; St. Bede College v. Weber, 168 111.

324, 48 N. E. 165; McCoy v. Pax-ton, 156 Iowa, 194, 135 N. W. 1091; Warden v. Addington, 131 Ky. 296, 115 S. W. 241; Pittsburgh & L. A. Iron Co v. Lake Superior Iron Co., 118 Mich. 109, 76 N. W. 395; Archer v. Helm, 69 Miss. 739, 11 So. 3; Brummell v. Harris, 148 Mo. 430, 50 S. W. 93; O'Donnell v. Penney, 17 R. I. 164, 20 Atl. 305; Harrell v. Hou3ton, 66 Tex. 278, 17 S. W. 731; Rose v. fletcher, 83 Wash. 623, 145 Pac. 989; Gwynn v. Schwartz, 32 W. Va. 487, 9 S. E. 880.

Even a written agreement might in such case be regarded as invalid, by reason of the fact that it is intended to operate as a conveyance without containing any words of conveyance. Lewis v. Ogram, 149 Cal. 509, 10 L. R. A. (N. S.) 610, 117 Am. St. Rep. 151, 87 Pac. 60.

62. Boyd v. Graves, 4 Wheat. (U. S.) 513, 4 L. Ed. 628; Hitchcock v. Libby, (N. H.) 47 Atl. 269; Terry v. Chandler, 16 N. Y. 354, 69 Am Dec. 707; Bobo v. Richmond. 25 Ohio St. 115; Hagey v. Detweiler. 35 Pa. St. 409: Le-comte v. Toudouze, 82 Tex. 208, 27 Am. St. Rep. 870, 17 S. W. 1047.

That possession must follow the agreement, see Benghoefe" v. Frazier, 150 111. 577, 37 N. E. 914; Fredericksen v. Bierent, 154 Iowa, 34, 134 N. W. 432; Hooper v. Herald, 154 Mich. 529, 118 N. W. 3; Osteen v. Wynn, 131 Ga 209, 62 S. E. 37; Watrous v. Morrison, 38 Fla. 261, 39 Am. St. Rep. 139. 14 So. 865; Le Comte v. Freshwater, 56 W. Va. 336, 49 S. E. 238. And see cases cited ante, note 60.

An agreement as to a common boundary line, which is effectual, as between the parties thereto, also concludes their successors in title,66 subject to the proviso,

63. Schraeder Min. & Mfg. Co. v. Packer, 129 U. S. 688, 32 L. Ed. 760; Randleman v. Taylor, 94 Ark. 511, 140 Am. St'. Rep. 141, 127 3. W. 723; Spring v. Hewston, 52 Cal. 442; Watrous v. Morrison. 33 Fla. 261, 39 Am. St. Rep 139, 14 So. 805; Purtle v. Bell, 225 111. 523, 80 N. E. 350; Tolman v Spar-hawk, 5 Metc. (Mass.) 469; Liverpool Wharf v. Prescott, 7 Allen (Mass.) 494; Kimes v. Libby, 87 Neb. 113, 12G X. W. 869; Thompson v. Major, 58 N. H. 242 (sem-ble); Coon v. Smith, 29 N. Y. 392; Hills v. Ludwig, 46 Ohio St. 373, 24 N. E. 596; Perkins v. Gay, 3 Serg. & R. (Pa) 327; Davis v. Russell, 142 Pa. 426, 21 Atl. 870; Pickett v. Nelson, 71 Wis. 542, 37 N. W. 836; 79 Wis. 9, 47 X. W. 936; Turner Falls Lumber Co v.

Burns, 71 Vt. 354, 45 Atl. 896.

64. Knowles v. Toothaker, 58 Me. 172; Proctor v. Libby, 110 Me. 39, 85 Atl. 298; Kellogg v. Smith, 7 Cush. (Mass.) 382 In Texas mistake in running the line appears to be regarded as immaterial. Harn v. Smith, 79 Tex. 310, 23 Am. St. Rep. 340, 15 S. W. 240.

65. Perkin v. Gay, 3 Serg. & R. (Pa.) 327; Brown v. Brown, 18 Idaho, 345, 110 Pac. 269; Quinn v. Windmiller, 67 Cal. 461, 8 Pac. 14; Clark v. Dustin, 52 Vt. 568.

66. Young v. Blakeman, 153 Cal. 477, 95 Pac. 888; Osteen v. Wynn, 131 Ga. 209, 62 S. E. 37; Darst v. Enlow, 116 111. 475, 6 N. E. 215; Orr v. Foote, 10 B. Mon.

(Ky.) 387; Leonard v. Quinlan, it would seem, that a purchaser for value cannot be affected by his predecessor's agreement unless be took with actual or constructive notice thereof.