Page:Harvard Law Review Volume 9.djvu/495

JUDICIAL CONFLICT, 4^7 opinions given their final shape, we should doubtless be put into possession of material of no small value to those of us who ai> engaged in the trial of causes. Individual dissent forms a subject by itself.^ But, from its nature, it is not for outsiders to be favored with much more than an occasional glimpse of what is happening after the learned justices retire to consult together. The foregoing remarks, it must be confessed, have taken a range wider than is warranted by the topic which we had designed briefly to touch upon. We were about to say a word upon confusion of boundaries. It was our purpose to express a regret that divergence of opinion should exist upon a question so apparently simple as that of the occupancy of land between adjoining owners, for a period of time longer than the statutory limit, where it turns out that the division fence has all the while been standing beyond the true line of boundary. The ordinary business man would take it for granted that the law upon such a point as this had been settled long ago with unanimity throughout the United States. He would be sur- prised at being told that on a state of facts so frequently recur- ring as this, the courts of two States geographically near and alike in many respects, namely, Maine and Connecticut, are widely at variance. To make this plain let it be stated in concrete form. A. and B. have been adjoining neighbors in a town for more than twenty years. During all this time a substantial fence has stood between their lots, not as the result of an agreement that the line of the fence shall be treated as the line of boundary, but sim- ply because each supposed that the fence as originally put there did as a matter of fact stand on the boundary line. A. has occu- pied a strip of land three feet, we will say, in width, as a part of his own premises. As a matter of fact it had belonged to B., the fence being three feet over on the other's land. In Maine it must appear that A. had the purpose of holding this land as his own in any event. That is to say, the courts of Maine permit B. to ascertain from A. whether A. did not keep this strip of land through ignorance, inadvertence, or mistake, believing it to be the true line, but with no intention to claim title to that extent, 1 A judge dissenting from the doctrine of his own opinion, and saying upon re- hearing, " that he now believed that that opinion was wrong," although all the rest of the court adhere to it, is not an every-day spectacle. But see Marshall v. United States, 131 U. S. 391.