#### Gove vs. White.

*Estoppel as to hounda/ry line*— Repugnant *instructions.*

1* To estop A from denying a boundary line orally agreed upon between him and B, it is not necessary that he should have intentionally made false statements to B, by which the latter was induced to put improvements on his (A’s) land; nor that, *"knowing This rights,*he should have agreed to a line by which he relinquished a part of his land to B; but he is estop-ped where, *understanding that there is uncertainty about the true line,*he agreed to the one fixed, and allowed B to erect valuable improvements, which B would lose but for such estoppel.

*%.*Where, after correct instructions have been given, others are given repugnant thereto, that is ground for a reversal of the judgment.

APPEAL from the Circuit Court for *WcmJcesha*County.

Ejectment. Defendant claimed the land under the plaintiff, through several *mesne*conveyances; and the dispute was as to the proper boundaries. Reference is m ade to a report of the decision of this court upon a former appeal (20 Wis. 425-437), where the terms of *Gove’s*deed are described, and the boundaries of the strips of land here in dispute are stated. That report will also show the evidence relied upon at the first trial as showing'an estoppel against the plaintiff; and this evidence was repeated in *283substance at tbe subsequent trial. Tbe decision of tbis court upon tbe present appeal turns entirely upon certain instructions given by tbe circuit court to tbe jury; and these are sufficiently stated in tbe opinion. Nerdict for tbe plaintiff; new trial denied; and judgment upon tbe verdict; from wbicb tbe defendant appealed.

*S. A. Bandies,*for appellant,

cited 44 Barb. 218; 3 Hill, 219, and authorities there cited ; 6 N. H. 107; 11 id. 102; 1 Me. 117; 4 Serg. & Eawle, 241; 14 id. 267.

*IS. S. Turner,*with *Levi*JLubbell, of counsel, for respondent.

PaiNE, J.

Tbe court, in its general charge, stated tbe law correctly, as to an estoppel growing out of a voluntary settlement of a disputed boundary line between adjoining land owners, and the erection of improvements on tbe faith of such settlement. It told tbe jury, that, in order to estop tbe plaintiff, “ be must have understood *that there was an uncertainty about the true line,*and that be was agreeing and assenting to tbe line fixed - upon; and if it appears that be did so agree, and hnew that tbe defendant afterward built bis fence upon tbe line thus fixed, and put. up valuable improvements, without objecting, be would clearly be estopped from denying that tbe fine agreed on was tbe true line.” But tbis being tbe correct law upon that subject, tbe fifth instruction asked by tbe plaintiff, and given, being repugnant to it, must be erroneous. That instruction was as follows: <£ Tbe conversation and acts of tbe plaintiff, *Gove,*will not estop him from claiming- in tbis action all tbe land to which be has a legal title, as against tbe defendant, *White,*unless it is shown by tbe evidence either, first, that said *Gove*falsely and intentionally made statements to *White,*wbicb induced *White*to make improvements on said *Gove’s*lands, believing it to be bis own ; or second, that said *Gove,*knowing bis rights in tbe premises, deliberately and voluntarily agreed with said *White*to fix upon a boundary line between bis land *284and said *White's*land, and to relinquish the land on *White's*side of said line,' entirely and forever to said *White."*

It is obvious that the two grounds of estoppel contained in this proposition are different from, and the latter is repugnant to, the one stated in the general charge. The first one rests upon intentional false statements, an element not involved in a voluntary adjustment of a disputed boundary line, where both parties feel that there is an uncertainty about the true line. The second required that the plaintiff should have known his rights, and deliberately have agreed to give them up. This is plainly repugnant to the proposition in the general charge, that *“*the plaintiff must have understood that there was an uncertainty about the true lines,’' because his rights were measured by the true line. Indeed, it is the fact that there is a dispute, and an uncertainty in the minds of the parties as to the true line, that gives to such voluntary agreements fixing a boundary that binding character which has induced the courts so steadily to uphold them.

As this instruction was incorrect in telling the jury that there could be no estoppel except upon one or the other of the two grounds stated in it, the judgment must be reversed, and a new trial had.

*By the Cowri.*— Judgment reversed, and a *venire de novo*awarded.