Searle v. Abbe

Metcalf, J. It is perfectly clear that the defendant cannot be permitted, in this action, to show, contrary to the record in the action formerly brought by him against the plaintiff, that he did not consent to the submission of that action to arbitrators, with authority to them to establish the boundary lines between his land and that of the plaintiff, which lines were in controversy or doubt. The defendant’s proper course was, to move to discharge the submission, if it was found by him to be contrary to his understanding or consent. The judgment that was rendered m that action is conclusive, until it shall be reversed on error, or [412] adjudged to be void by reason of fraud in obtaining it, or for other legal cause. Talcing that judgment to be valid, this case is decided by that of Goodridge v. Dustin, 5 Met. 363, in which it was held, that on a submission to arbitration, in a form like that entered into in the first case by these parties, the award made by the referees, and accepted by the court, was conclusive as to the boundaries between the lands of the parties. Not that land can be transferred by an award and judgment thereon; but that the parties to the submission are thereby estopped to dispute the title or boundary which is distinctly settled by the award. The arbitrators, in this case, did not make new boundaries, nor change old ones ; they merely found where the preexisting boundaries were. As was said by James Otis arguendo, and affirmed by the decision of the superior court of judicature of the Province of Massachusetts Bay, almost one hundred years ago, in a case in which arbitrators had determined a boundary line, without ordering a release of the land on either side, “ I grant the award to be void if the arbitrators have determined the freehold; but here they have not, they have only determined the line; the settling that does not affect the' freehold.” Rogers v. Kenwrick, Quincy, 63, 64. See also Clark v. Burt, 4 Cush. 396; Calhoun's Lessee v. Dunning, 4 Dall. 120, 122; Robertson v. M' Niel, 12 Wend. 583; Shelton v. Alcox, 11 Conn. 240; Doe v. Rosser, 3 East, 16 ; Thorpe v. Eyre, 3 Nev. & Man. 218, and 1 Ad. & El. 932, by Patteson, J. Defendant defaulted.