#### Doe. on dem. of JEREMIAH GAYLORD vs. EBENEZER W. GAYLORD.

In ascertaining tlie correctness of a boundary line, an allowance should be made for the variation of the needle, when a variation is established.

Where the identity of a boundaiy line was submitted in writing to arbitra*368tors, and they, in writing also, decided on a line, and actually marked it, both parties are concluded to deny tlic correctness of such a line, although, in fact, it was different from the true line.

Action of ejectment, tried before Saunders, J., at the last Superior Court of Beaufort.

The sole matter in dispute between the parties, is as to the dividing line made between them in partitioning the lands which had descended to them and others as the heirs of John Gaylord. The plaintiff and defendant drew contiguous lots, and the point of beginning of their dividing line was not disputed between them. The course called for in the report of the commissioners who made the division, as that of this line is, South, 24 degrees West. In 1853, the plaintiff and defendant, by a deed in writing, submitted the identity of the line in question to two arbritrators, with liberty to choose an umpire, if they should not agree. They did disagree in the matter, aiid the umpire decided that the line should be run as the compass then pointed, regardless of the variation which had taken place in that instrument since the original division. Under this award a new line was run and marked according to it, and it was admitted that according to that line the defendant had trespassed upon the plaintiff; but that by the line of 1825, allowing for the variation of the compass, the defendant would not be a trespasser.

11 is Honor, charged the jury that they were to ascertain ihe line as it existed at the time of the partition in 1825, and if they were satisfied that the true line, as it was then run, differed from that run by the arbitrators, in consequence of the variation of the needle, it was their duty to allow for such variation. In pursuance of the above instruction, the jury found a verdict for the defendant. Judgment and appeal by the plaintiff.

The following note is appended, by bis Honor, to the case sent up by him: “I am satisfied from the testimony, the verdict of the jury was correct, and in conformity with the charge; but from authorities I since examined, I am convinced the *369charge was wrong, and the defendant was concluded by the ■ submission and award, both being in writing, and I should set the verdict aside, but that I consider it important to have the question settled.”

Nq, counsel appeared for the plaintiff in this Court.

Donnell, for the defendant.

Battle, J.

Independently of the effect of the award upon the rights of the parties, we have no doubt that the charge of his Honor in the Court below was correct. The division line between them when the partition was made in 1825, was the course indicated by the compass at that time, and it could not change with the variation of the needle. We agree also in the opinion expressed by his Honor after the trial, that he was wrong in not giving any effect to the award in the establishment of the disputed line. The submission and the award were both in writing and under seal, and the line thereby settled was a straight line from the admitted corner to its termination, according to the course indicated by the compass at the time when the award was made. This was a full, certain and final decision of the matter in dispute, as was settled by this Court in the cases of Miller v. Melchor, 13 Ire. Rep. 439, and Moore v. Gherkin, Busb. Rep. 73. But it is contended by the defendant’s counsel, that admitting the award to be binding between the parties, so as to give the plaintiff’s lessor a right to relief in another forum, it neither divests the title of the defendant, nor precludes him from a defence in the action of ejectment; and for this his counsel cited the case of Crisman v. Crisman, 5 Ire. Rep. 502, and some other authorities. Of the case of Crisman v. Crisman it may be remarked, that the submission was not by deed nor even in writing. Had it been, the Court intimate very strongly, that though the award could not have operated as a conveyance of the land, yet, it would have concluded the party against whom it was made, by way of estoppel, from disputing the other party’s [title, as was laid down in Morris v. *370Rosser, 3 East’s Rep. 15. "We are inclined to hold this to be the true doctrine; but it is unnecessary to resort to it in this case, because the matter of dispute submitted to the arbitrators was a question of fact, to wit, the location of the dividing line between the parties, and not a question as to the title of any certain parcel of land; and the decision of the umpire upon that question, concluded them, as it would have done upon any other matter of fact; and to this effect are the cases of Miller v. Melchor, and Moore v. Gherkin, above referred to. The judgment must be reversed, and a venire de novo awarded.

Per Curiam.

Judgment reversed.