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lines, and yet refuse to sell the land, and be within the meaning, and, it may be, within the spirit of his assertions. Nor was there such mutuality between the parties as to make a certain and sure contract. For Jordan was not bound from anything we can see in the record to buy from Deaton the land that might fall into section eighteen below the Browning line. It might be expected that he would prefer the land and his improvements upon it to the entrance money, but a contract to be specifically enforced must stand upon its own express provis ions, and not upon inferences, though ever so reasonably and forcibly drawn. It is proved by Jordan's witness that he made no reply to Deaton's declaration, that if the line ever embraced the improvements, he should only expect, or require the entrance money: nor was there any agreement or expressed expectation that another attempt would be made to establish a iine.

Then, without regard to the statute of frauds, or to the sufficiency of the allegations upon which to make a decree of specific performance, this point is disposed of on the ground that no such agreement is proved as courts of equity will require to be specifically performed.

Another and more plausible point made for Jordan is, that Deaton, by his words and by his acts, as before narrated, has so recognized the Browning line to be the line between sections eighteen and nineteen as to establish it as the correct line between him and Jordan, although it was not the one delineated by the public surveys.

It is well established that proprietors of adjacent properties may, by parol agreement, establish an arbitrary line, to be the dividing line between them; and acquiescence in such agreement will make it good; or an agreement may be inferred from acquiescence and occupation according to the line. No written agreement, no consideration need be shown; the implied assent to the line by the respective occupancers to it will be sufficient for its establishment. Blair vs. Smith, 16 Misso. R. 280; Rockwell vs. Adams, 6 Wend. 469; Mc Cormick vs. Barnum, 10 Wend.

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110. The distinction, however, between those cases and this, is, that Jordan was not a proprietor of the land adjacent to that of Deaton, in section eighteen, but a settler upon public land. There are a series of decisions by the Supreme Court of Tennessee recognizing and applying the same doctrine as that found in the cases already cited, which are reviewed and confirmed in Wilson vs. Hudson, 8 Yerg. 406; in which it is applied to the owner of land, and to one who is about to make an entry of adjoining land. And this court, in Baker vs. Hollobaugh, 15 Ark. 325, conceded that occupiers of public land, in view of its immediate purchase, or of its purchase when it should come into market, might so agree by parol, or act respecting a division of the land, as to entitle one to relief against the other who would not abide by the contemplated division. And although, in that case, specific performance seemed to be the mode of relief that was asked of the court, and of which the court was then remarking, the concession might as well be applied to the settlement of a boundary line different from any marked by the surveys, when made in anticipation of a purchase of public land.

Besides the difficulty of considering Jordan to be a party to a settlement of a boundary line without being the owner of land next to the proposed boundary, or without evidence that he was ascertaining the line with the purpose of making an entry, all the acts of Deaton that are brought up against himas his encouragement to Jordan to build, his presence and aid in the erection of his buildings, and his acquiescence in the settlement of Jordan, and even his declarations about the Browning line-seem to relate only to the improvements of Jordan, and not to refer to fixing a permanent boundary by the Browning line, disconnected with the conditions of Jordan's residence and occupancy, which did not extend through the length of the line between the two adjacent quarters in sections eighteen and nineteen. We do not think that any fact in the case calls for a settlement upon the Browning line as the

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line between the parties, any further than the improvements of Jordan may extend with the line.

But to hold that Deaton, may recover the improvements., after encouraging Jordan to make his settlement permanent, by his declarations about the Browning line, by his acts of acquiescence and assistance in the improvements, which Jordan was pushing on from 1851 to 1855, would be a reflection upon the administration of justice. The doctrine of equitable estoppel must be applied to Deaton against any benefit from his judgment in ejectment. If a man, by encouraging the sale of his own land, shall be estopped from afterwards questioning the right conferred by the sale, so ought Deaton's mouth to be closed against the assertion of a claim to the land occupied by the improvements of Jordan. The land was as much Deaton's in 1851, in 1854, and the intermediate period, as after Clingman's survey: and the means of ascertaining the true line were as accessible to Deaton then, as in 1855. Not as a matter of contract, but to do equity while asking it, Jordan ought to pay Deaton the entrance money of the land covered by the improvements. And so we direct that Deaton be perpetually enjoined from enforcing his judgment in ejectment against Jordan, so as to deprive him of his improvements along the southern line of the south-west quarter of section eighteen, township six, south of range twenty-two west, and that Jordan pay to Deaton, as above expressed. The decree of the Clark Circuit Court in chancery is reversed, and the case is remanded to ascertain the extent of the injunction, and to render a decree in accordance with this opinion.

The supplemental bill of September, 1858, is to be dismissed. Jordan has no claim to the land on the west side of the east line, between the south-east and south-west quarters of section eighteen, as traced by Marsh, the county surveyor. That the south half of the section contains more than three hundred and twenty acres, does not give Jordan a right to run his line westward from the south-eastern corner of the section, more than half a mile. The excess in the quantity falls into the south

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west quarter, it being upon the western division in the township. On account of this bill Jordan must pay half the costs in the Circuit Court.

JORDAN VS. DEATON.

Mr. JUSTICE FAIRCHILD.

This is the action of ejectment mentioned in the chancery case between the same parties, just decided. Although the judgment is subject to the perpetual injunction ordered against it, that extends to but part of the judgment, for the eight acres of enclosed land west of the east line of the south-west quarter of section eighteen, mentioned in the verdict of the jury, are not included in the land which Deaton, in the other case, is restrained from taking.

But this case remains for disposition here upon the questions its own record presents; and there is nothing in that to affect the judgment of the Circuit Court. The conversations of Deaton, to the same effect as some detailed in the chancery suit, were properly excluded from the defense. Jordan was allowed to adduce some illegal testimony, and though the verdict were against that we would not disturb the judgment. The instructions to which the motion for new trial objects, were not excepted to, and are not in the record.

The judgment is affirmed.

Gaster's heirs vs. Gaines.

[DECEMBER

GASTER'S HEIRS VS. GAINES.

The certificate issued by the Board of Swamp Land Commissioners, under Ordinance No. 9, that a party had made application to purchase certain swamp lands and had presented accounts of levee work or scrip in payment thereof, was not a sale of the land-the certificate merely evidencing an application to purchase, which the commissioners might subsequently accept or reject.

Appeal from Chicot Circuit Court in Chancery.

Hon. JouN C. MURRAY, Circuit Judge.

HUTCHINSON and WATKINS for appellants.

HARRISON for appellee.

Mr. Justice FAIRCHILD delivered the opinion of the court. The following certificate was issued from the swamp land office at Helena:

"OFFICE OF THE BOARD OF SWAMP LAND COMMISSIONERS,

"Helena, Ark., January 10th, 1852. "This certifies that Stephen Gaster, of Drew county, Ark., "has this day applied at this office to purchase the following lands, to-wit: W. of S. E. sec. 33; the W.

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of sec. 22; the W.

of the N. W. of the S. W. 4,

sec. 22; frl. sec. 21 (east of Bayou Mason); the W. of the "N. E. 4, sec. 28; the E. of the S. W. 4, sec. 28; the N. W. "frl.of sec. 28 (east of Bayou Mason); the E. § of the N. E.

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,sec. 35; the W. of the N. E. 1, sec. 14; the W. S. E.

, sec. 14; the N. E. of the S. E. of sec. 8; the N. W. † "of the S. W. 9, and the S. W. of the N. W. of sec. 9,

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