
    ROCKINGHAM, FEBRUARY TERM, 1808.
    Dudley Currier v. John Basset et al.
    
    Towns may agree on divisional lines, as far as respects jurisdiction.
    The towns of A. and S., to settle a disputed line between them, submitted the matter to arbitration, and afterwards ratified the doings of the arbitrators. According to the line thus established, the residence of C. would be in A. Subsequently, C. sued the selectmen of A. for illegally assessing him, and offered to show that the true charter line differed from the agreed line, and that, by the true line, his residence would be in S.
    
      Held, that this evidence could not be received, the establishment of the agreed line being conclusive.
    This was trespass for an illegal assessment, made by defendants as selectmen of Atkinson, Jan. 1, 1808.
    Defendants justified as selectmen and assessors ; the plaintiff an inhabitant of Atkinson, and lawfully assessed as such.
    Replication traverses plaintiff being an inhabitant of Atkinson.
    Rejoinder takes issue on the traverse.
    
      This action was tried at September Term, 1806 ; when a verdict was taken for defendant, subject to the opinion of the Court, whether the evidence adduced and used on the trial, on the part of the defendants, to prove that plaintiff was, at the time, an inhabitant of Atkinson, was conclusive evidence of the fact, so as to preclude the evidence offered by plaintiff.
    It appeared in evidence that Atkinson contained the westerly part of a township granted and incorporated in 1749-1750, by the name of Plastow ; and that Salem bounds on Atkinson west line. By the charter it appears that the bound on the State line isa monument near Captain’s Pond, so called, and oh the northerly side a black oak, south-east corner of Londonderry; and the course, by the charter, from the oak is south 25° east. The monument in the State line is agreed on, and the place of the oak mentioned in the charter is disputed.
    To settle this line, the towns of Atkinson and Salem agreed to submit the matter .to arbitration ,• and, on Nov. 20, 1799, the arbitrators made an award, “ that the twin oak tree with the stones about it is the south-east corner bound of Londonderry, and is a bound between Atkinson and Salem ; but, in case, on some future perambulation, the said twin oak tree should not be considered as the south-east comer bound of Londonderry, agreeably to their present -charter, then the bounds between the said towns of Atkinson and Salem shall be altered agreeably to the bounds which may be established between the towns of Londonderry and Atkinson ; but, until such alteration is made and agreed to, the said twin oak shall be considered as the bound between said towns of Atkinson and Salem; and the bound near the Captain’s Pond shall be twenty-five rods westerly, as the State line runs, from the stake and stones on B. Emery’s land, shown us by committee of Salem ; and that a straight line from the twin oak to the bound affixed by us shall be considered as the dividing line between said towns of Atkinson and Salem, until some alteration shall be made, as aforementioned, in the south-east corner bound of Londonderry, when a straight line from the bound which may hereafter be established according to their present charter to the bound, affixed by us near the Captain’s Pond shall be the divisional line between said towns.
    Each of these towns, — Atkinson and Salem, — at a legal meeting, has ratified, accepted, and confirmed the doings of the arbitrators.
    By this line, plaintiff lives in Atkinson, and the tax is legal.
    There has been no agreement between Londonderry and Atkinson as to altering the corner (the twin oak), nor any act of Londonderry, showing that the twin oak is not the corner, — no other place established as south-east corner. But the plaintiff contended that the twin oak could now be shown in evidence not to be the true south-east corner of Londonderry by their charter. The plaintiff contends that the black oak mentioned in the charter is sixty rods westerly of the twin oak established by the arbitrators ; and, if this be so, it is agreed, a line running to the State line, the course mentioned in the charter, will leave Currier in Salem. There is, in this place, about twelve rods between the two lines.
    Plastow was granted before Salem, and Londonderry before Plastow.
    It does not appear that Salem has, as a town, done any thing in this matter since acceptance of the award.
    The plaintiff now offered evidence to prove that the black oak mentioned in the charter of Londonderry was sixty rods westerly of the twin oak established by the award. This evidence was rejected by the Court; and the single question now, for the opinion of the Court, is, whether that decision was correct.
    
      Button and Mason, for plaintiff.
    Varnurn, for defendants (and, as it is believed, Smllivtm).
    
   The opinion of the Court was now delivered by

Smith, C. J.

After stating the case and the question, he observed that the Court had no doubt as to the right of towns to agree on divisional lines, as far as respected jurisdiction. A perambulation is the renewing of old bounds; but there may be instances where no old line can be traced ; in such case, the selectmen doubtless may make marks.

But this is something more. In case of dispute between corporations respecting lines of jurisdiction, they may settle such disputes ; otherwise they must live for ever in a broil. A court of law cannot establish the line, but only declare, in particular cases, where it is. The legislature can, no doubt, alter and establish such lines at their pleasure; such has been the practice. And this is an answer to the hardship complained of in this case, that an individual may, in this way, be unjustly removed from one corporation and made subject to another. He may appeal to the legislature.

There is no reason to apprehend that one town will surrender a portion of its territory and jurisdiction to another. No alteration can be made without the consent of the majority of both corporations. Certainly towns possess many powers more liable to abuse than that of settling disputes about lines. Indeed, it is generally of far more consequence that such disputes be settled than how they are settled.

In the present case, Atkinson and Salem have, by the intervention of arbitrators, established a line between them. But it is said this was only for a time. It is sufficient, if it was established when the present assessment was made.

According to any fair construction of the award, it is now binding. The twin oak is a bound between Atkinson and Salem. It is said that, in case, on some future perambulation, the twin oak should not be considered as the south-east corner bound of Londonderry, then the line now established shall be altered, and made conformable to the bound established between Londonderry and Atkinson. Before the line established by the award ceases to be the divisional line, the twin oak must cease to be considered as the south-east corner of Londonderry. It must cease to be considered as the true corner by Londonderry ; by Londonderry ’and Atkinson ; or by Londonderry, Atkinson, and Salem. It does not appear that it has ceased to be considered as the true corner by any person, except Currier, the plaintiff. The true meaning of the award seems to be this — that if, on a perambulation by Atkinson and Salem, they should agree on a corner other than the twin oak, or in case Atkinson and Londonderry should agree on another corner, and establish it, then the line now established is to be altered accordingly.

If the defendants had recognized any other line than that established in 1799 as the dividing line between Atkinson and Salem, they would have wilfully erred. The selectmen are bound to regard the line established by the towns, — the line which has been considered in fact as the true line, though never established.

It may well be doubted whether, in case no line had been established, but there were proof that, for more than twenty years, each town had ever used jurisdiction to a certain line, any evidence ought to be admitted, in an action of this sort, to show where the line actually is. This case is stronger than that. Here the towns have established a line. Till that is altered, the towns, and every individual in each, are bound by it. If either town, or any individual, is dissatisfied, they must apply to the legislature.

The evidence given by defendants is conclusive evidence of the line, till altered by the legislature or in the way pointed out in the award. It has not been altered in any way, and therefore the evidence offered by plaintiff was properly rejected. Judgment for defendants. 
      
       N. H. Laws, ed. 1797, 178-180; ed. 1805, 195, 204.
     
      
       Proprietors of adjoining townships were competent to settle the boundary line between them. Richardson, C. J., in Proprietors of Enfield v. Day, 1835, 7 N. H. 457, 467, 468.
      As to power of selectmen to agree, in case of a disputed line, see Richardson, C. J., Gorrill v. Whittier, 1825, 3 N. H. 265, 267, 268; Gilchrist, J., in Bailey v. Rolfe, 1844, 16 N. H. 247, 251, 252; Henniker v. Hopkinton, 1846, 18 N. H. 98, 101; Sawyer, J., in Pitman v. Albany, 1857, 34 N. H. 577, 580, 581; Cushing, C. J., in Greenville v. Mason, 1876, 57 N. H. 385, 392.
      By statute of Dec. 23, 1820, provision is made for the settlement of the line by a court, in case of disagreement of the selectmen; the judgment of the court to be “ of the same force and effect as would have been the agreement of the selectmen.” Laws of 1820, c. 85; Gorrill v. Whittier, 
        1825, 3 N. H. 265;. Lawrence v. Haynes, 1829, 5 N. H. 33. In the Revised Statutes of 1842, it was enacted that the decision of the court should be final. Rev. Stat. c. 37, § 6; Gen. Laws, c. 51, § 6. A judgment undér this statute is conclusive upon the parties in a suit against one of the towns, pending when the judgment was rendered. Pitman v. Albany, 1857, 34 N. H. 577. The jurisdiction of the court to settle disputed lines is not confined to cases where lines have been previously run and marked. Chatham’s Petition, 1846, 18 N. H. 227. As to matters of practice under the statute, see Boscawen v. Canterbury, 1851, 23 N. H. 188; 25 N. H. 225.
      Perambulations by selectmen are evidence in suits between individuals, whose lots are bounded by the town lines. Lawrence v. Haynes, 1829, 5 N. H. 33; Adams v. Stanyan, 1852, 24 N. H. 405 (but see Bailey v. Rolfe, 1844, 16 N. H. 247). They are not conclusive. Sawyer, J., in Pitman v. Albany, ubi sup. 581; and see Greenville v. Mason, ubi sup.
      
      If a line has been treated, for more than fifty years, as the correct one between the towns, it must be regarded as the true jurisdictional line, notwithstanding it differs from the calls of the charter: Hanson v. Russell, 1853, 28 N. H. 111; but a jurisdictional line thus established does not necessarily control the rights of private property : Eastman, J., in Hanson v. Russell, 117. (See Wells v. Jackson Iron Co., 1869, 48 N. H. 491, 538.) The fact that a certain part of a highway has for several years been treated by both the towns of A. and E. as being within the limits of E. is not conclusive evidence in favor of A., in a suit by an individual against that town, founded upon an alleged defect in that part of the highway. Pitman v. Albany, 1854, 29 N. H. 575. But if a town has exercised exclusive jurisdiction over a particular tract of land during the residence of an alleged pauper upon it, such town cannot afterwards be permitted to allege, in a settlement case, that the place of the pauper’s residence was, in fact, in another town. Plastow v. Kingstown, reported post; Northwood v. Durham, 1820, 2 N. H. 242.
      As to correction by the legislature of a mistake in the charter boundaries, see Proprietors of Enfield v. Permit, 1830, 5 N. H. 280; s. c. 1837, 8 N. H. 512 (and see Proprietors of Enfield v. Day, 1835, 7 N. H. 457).
     