Jones v. Dewey
17 N.H. 596
Superior Court of New Hampshir...
1845
Check Treatment
Woods, J.

It is well settled that parties may agree upon a line of division between their respective lots of land; that they may agree that a surveyor may run the line, or that arbitrators of their choice may determine it; and that a line constituted in either of those modes is to be deemed the true line, so far at least that neither party will be permitted to maintain an action in derogation of such convention, or to assert a possession beyond the limits so settled. Gray v. Berry, 9 N. H. Rep. 473; Sawyer v. Fellows, 6 id. 107; Aldrich v. Jessiman, 8 id. 516. It is not because the effect of such a proceeding is to pass the title to any portion of the soil that may lie *599between the conventional and the true lines, in case they should fail at any particular point, to coincide; but because, where parties have agreed on a line, it is inequitable to permit either of them to act contrary to the effect and true object of such agreement.

It is, therefore, wholly immaterial whether the submission that was entered into in this case was by deed or by parol, written or unwritten; and unless the terms of the submission required the award to be in one or the other of the forms indicated, the arbitrators were at liberty to make it in such form as they might see fit to adopt. If it pursued the submission in its scope and object, and in its form was not inconsistent with the requirements of the submission, it possessed all the elements of a good and valid act, and was conclusive upon the parties as to all the matters embraced in it.

It appears that there was an arbitration bond between these parties, by which a certain corner in dispute between them was referred to the arbitrament of Smith, Blodgett and Eastman. After these matters had been settled, and while the parties were upon the ground, and before any written arvard had been made, or attempted, it was arranged by the parties that the same arbitrators should proceed and settle the line between the respective estates of the plaintiff and defendants, and that the line which should be so settled should be taken to be the boundary, and conclusive upon either party. This -was done by the arbitrators, and both parties assisted, and neither of them dissented from the decision.

Now this submission was by parol; it was no part of the submission which was the particular cause of the parties being together at the time and place of the transaction, but a wholly distinct affair. Its terms did not require the arbitrators to make an award in writing, but left to their choice the manner in which it should be done. They did not make a written award. It is true, there existed in *600tlieir minds a purpose to do so, as it appears, and it was a part of their purpose to embody it with their award upon the other matter which was submitted to them; but this purpose was not persevered in, and failed, for some cause, to be carried into effect. But they did all that they were required by the submission to do. They settled the line, and made known to the parties ^t the time what they had settled. In fact, the parties were witnesses of the act, which was of such a nature that no formal publication was required or even expected.

Had there been no attempt made by the arbitrator’s, or some of them, to put the award in writing, no question could exist as to the sufficiency of the act. It is not easy to perceive any just ground for holding that an attempt or a purpose, on the part of the arbitrators, to reduce their award to writing, and thus to do what their office and duty did not require them to do, should vitiate and avoid an act, otherwise sufficient and binding upon the parties.

The instructions of the court must, therefore, be held to have been correct, and there must be

Judgment on the verdict.