#### William C. Whitney *versus*James Holmes.

[f the owners of land adjoining have a dispute about the line of partition and agree that certain persons shall survey and establish the line, and that their doings shall be decisive, and they survey and mark the line accordingly ; this does not give to one of the owners such a right to the land on his side of the line so marked, as to preclude the other from showing that his land extends beyond such line.

This was *trespass quare clausum fregit.*The soil and freehold of the defendant being traversed, a trial was had, at the last October term in this county, before *Thatcher,*J. The plaintiff and defendant were owners of adjoining tracts of land, and a dispute existed as to the dividing line between them. The plaintiff having produced in evidence an agreement, subscribed by him and the defendant, the object of which was that the line should be surveyed and run by three persons, whom they had selected for the purpose; and in which both agreed that the survey to be so made should be decisive; and having proved that the line was run accordingly, and that the *locus in quo*was within his close as determined by that line ; he claimed a verdict, upon the ground that this agreement, thus executed, was conclusive evidence that the close was his soil and freehold. The defendant, contending against the effect of the agreement, offered to prove facts which, if true, would show conclusively that the line, thus run, was improperly settled. This evidence being rejected by the judge, and a verdict found for the plaintiff, a new trial was moved for, on account of the said rejection.

*Mellen*for the plaintiff.

* *Fessenden*for the defendant.

Parker, C. J.

The question in this case is, whether the agreement, signed by the defendant, creates a legal impediment to the introduction of the evidence offered by him at the trial. In order to give it this effect, it should appear that the agreement operated as a conveyance of the defendant’s soil to the plaintiff— which cannot be pretended, for no estate can pass, according to our statutes, but by deed: or it must have amounted to an estoppel, which has not been insisted upon; no man being barred of his right, by way of estoppel, but by record or deed. How, then, does it operate ? It seems to be admitted, by the plaintiff’s counsel, that it only amounts to a license for the plaintiff to enter upon, occupy, and enjoy, the defendant’s soil; and such a license may be created by writing without seal, or by paroi. The effect of the paper, as a license, would be to protect the plaintiff against any action, by the defendant, foi any act done upon the land which would otherwise *141be a trespass. But the effect which the plaintiff would give to it is a right to sue the defendant, if he should enter upon his own land, and cut grass, or do any act of ownership thereon. The license does not make the close the soil and freehold of the plaintiff, and therefore cannot be conclusive evidence in his favor, upon the issue submitted to the jury.

It is said that agreements of this kind have been often used in evidence, and have had their effect according to the intent of the parties. Such evidence, when submitted to a jury, may often have operated conclusively, when the point in dispute was the settlement of a line, or the identity or existence of a monument; and in the ease before us, the same paper, considered by the jury in connection with the evidence which was rejected, may bring their minds to the same conclusion. But the complaint is, that it was considered as, in itself, transferring the land of the defendant; which cannot be, according to any rules of law, or consistently with the provisions of the statute. The verdict must be set aside, and

*A new trial granted,**(a)*

(a)

**It is quite clear that any disputes respecting land may be referred to arbitration, and that one party may be directed to execute all the necessary conveyances to the other, and to perform all such acts as may be requisite to confer the right and possession, *(Caldw. 2.—Johnson*vs. Wilson, 1 Willes, 248. — *Knight*vs. Burton, 6 *Mod.*231 ;) and will incur a breach of the award if he neglects compliance. Where the parties referred an action of ejectment, and the premises were awarded to one party, and a subsequent ejectment was brought between the same parties concerning the same lands, and the defendant wished, at the trial, to go into evidence of the title, and the judge refused to allow it, considering him precluded by the award from disputing the title,— the Court of King’s Bench held, that the evidence was properly rejected, observing that u there was no reason why the defendant should not preclude himself, by his own agreement, from disputing the title of the opposite party; and it was decided that the consent of the parties that the award of the arbitrator should be conclusive as far as concerned the right to the land, was sufficient to bind them in the action of ejectment.” — *Doe*vs. *Rosser,*3 *East,*15. — Vide *Peytoe’s*case, 9 *Co.*78. — *Vin. Ab. Arb. A.*5, *U.*11, *Y.*1. — Rolle, *Arb. D.*9. — *Bacon, Arb. A.*7th ed. — *Emans*vs. *Turnbull & Al., 2 Johns. R. 322.—Jones*vs *The Boston Mill Corporation,*6 *Pick.*148. — S. C. 4 *Pick.*507.— *Brown*vs. *Bellowes,*4 *Pick.*179. — A specific performance of such an award will be decreed in equity. *Jones*vs. *The Boston Mill*Corporation, ubi sup.