Lejonquist v. Bukowski

Pee Cueiam.

Action to locate a disputed boundary line between two farms. The defense was that the line had been determined and located .by a surveyor pursuant to an agreement between the parties. A refusal to find a location by agreement or, as claimed, by a common law arbitration, raises the only question in the appeal. The complaint averred that the location of the boundary line was in dispute and had never been determined. This paragraph of the complaint wás found true. That necessarily found the defense not proven, and there is no merit in the contention that the court omitted to make a finding upon the issues presented.

A statement or discussion of the evidence would be of no value to bench or bar. It is enough to say that, even though plaintiff admitted that he suggested the employment of a surveyor and agreed to pay half of his charges, the evidence is far from satisfactory that there was a clear and definite *492 agreement to submit to and abide by the line which such surveyor might locate. Furthermore, plaintiff had no notice of the survey, was not present when it was made, and had no opportunity to present his data or evidence as to the proper and original location of the line. In short,- the evidence is not such as to compel a finding of a common law arbitration, and there is no claim of location by statutory arbitration.

The order is affirmed,