Opinion.— The first objection to the judgment cannot be maintained. The plaintiff prayed that defendant might be enjoined and restrained from trespassing upon his land. The defendant answered denying the trespass, claiming the land upon which the trespass was alleged to have been committed as his own, and prayed judgment for his land, quieting his title, and that plaintiff be enjoined from trespassing upon his land.
To this answer the plaintiff replied that plaintiff and defendant had agreed upon a division line between their lands, which were contiguous, describing the line run and agreed upon. Whatever the character of the suit as first brought, it was, by these pleadings, turned virtually into a suit for the determination of disputed boundaries. The defendant made this the issue. He asked to be quieted in his possession. The effect of the decree is to settle the bound*505aries and quiet the title to the lands, and the defendant cannot complain of this action of the court which he himself invoked, because it may not be quite as favorable to his case as he had anticipated. There is nothing inconsistent or foreign to the claim made by the plaintiff in his petition in the judgment rendered. A prayer that defendant be enjoined from trespassing upon his land, of itself suggests the propriety of determining its boundary, and, when supported by the pleadings of the defendant in this case, fully warranted the judgment as rendered.
The other errors assigned resolve themselves into this one proposition, whether the testimony was sufficient to warrant the judgment of the court. The case was tried without the intervention of a jury. There is nothing in the record to indicate upon what peculiar views of the testimony he based his conclusions, or what his views of the law of the case were in reference to the several propositions of the plaintiff in error in his assignments. We cannot say that he looked upon Erslcine’s report as based upon an impossibility, or whether he thought Eberling estopped or not estopped from claiming up to Weyel’s line according to Hector or Smith’s survey, or whether he disregarded wholly Eberling’s purchase. It has often been said that where a cause has been submitted to the judge the presumption will be that he gave weight only to the testimony as it deserved to have weight; that he rejected what was immaterial or incompetent, and gave proper consideration to that which was relevant and pertinent to the case.
Our inquiry, then, upon these assignments of error, must be restricted to ascertaining whether, upon the whole case, as presented to the judge, and set out in the statement of facts, there is testimony to warrant his finding; not what our views of it might be, for we did not hear the witnesses, nor to us is there confided the task of judging of their credibility or the weight which should be given to the testimony. It must be a very clear case in which a re vis*506ing court would undertake to set aside the judgment of the judge or jury upon the facts.
This was a case of disputed boundary. The lands of Weyel and Eberling adjoined. The controversy was as to the location of the line between them. The tract of land formerly belonging to Bracken was divided into two equal portions; one to the legatees and one to the heirs. Weyel claims under the legatees; Eberling under the heirs. The difficulty in determining where the dividing line was resulted from uncertainty as to where the beginning corner of the survey 91 was. Several surveys had been made and the several surveyors differed. But the county surveyor, Erskine, testified on the trial that he had found this corner; that he had run this division line between the respective tracts in accordance with it, and that the parties agreed and assented to it.
Surveying Weyel’s land from the west, and surveying Eberling’s from the east, measuring the distances called for in their field-notes, the surveys did not meet by some sixty or sixty-two varas, and this distance, by agreement, he divided between them. If the lands were surveyed with absolute accuracy the surveys would meet. We have very little doubt, as the appellant’s counsel says in his brief, u that the bottom facts of the case ” are that the original division of this Bracken tract was actually made equal between the heirs and legatees; that the survey for the legatees was begun from the westward; that for the heirs from the eastward; that they adjoin; and the line run by Erskine was the exact half way between the eastern and western line, and consequently the true boundary between the tracts. There was no vacancy between them, and if his claim would not make the tracts meet, it was his duty to project the lines to that end, dividing the space equally. Equality is equity.
Other surveyors who surveyed the land differed widely from Erskine, but we believe from the evidence that Ers*507kine’s line is the .exact division line between the parties, and that the judgment, if founded upon that, is not without evidence to support it independent of any agreement. But the agreement between the parties, we think, would warrant the judgment.
There was testimony to show that the line was run by agreement and direction of the parties by the county surveyor, Erskine, for the purpose of settling and determining what had been in dispute; ivas agreed upon and acquiesced in by them, at the time, and for more than a year after-wards there was no dissatisfaction expressed on either hand. See George v. Thomas, 16 Tex., 88. It is a well-settled doctrine that the courts will not disturb parol agreements or long acquiescence in a boundary line. See Wakefield v. Ross, 5 Mass., 16; Smith v. Hamilton, 20 Mich., 433. Such agreements are not within the statute of frauds. Hoxie v. Clay, 20 Tex., 526.
The objection that the proof was insufficient to warrant a judgment for damages is not well taken. The title to the land was in Weyel and also the right of possession. He was entitled to recover of Eberling for whatever damages he had sustained from his trespass. Hillman v. Baumbach, 21 Tex., 205.
Judgment aeeibmed.