It appears that there was a controversy in 1878 between the owners of lots 164 and 165 as to the location on the ground of the dividing line between the lots. The referee has so found, and the claim made by the owner of lot 165 that the line was at an old log fence westerly of the new channel of Peabody river, together with the act of the parties in causing a survey of the line to be made, tended to prove the fact. It does not necessarily follow from the establishment of the line in 1853 that there could be no controversy about it twenty-five years later. The parties interested in the line in 1878 were different from the parties who took part in establishing it in 1853, and, so far as appears, had no knowledge of their acts. The owners of 1878 may have been as ignorant of the true location of the line as were the occupants of 1853, and their interests may have required with equal force that the location should be established. There is no suggestion of want of good faith on the part of either of them. The question whether there was a controversy in 1878 being one of fact, and there being *Page 402 evidence before the referee upon which it could properly be found that there was one, the finding is conclusive.
It is argued by the defendants that because the deeds under which they claim, extending back to 1839, have described this line as the Peabody river, there was no uncertainty about it and consequently no room for controversy. It may be true that there could be no controversy concerning the location of the Peabody river, but that was not the question about which the parties differed. Their disagreement related to the location of the dividing line between lots 164 and 165. The owner of lot 165 said, in effect, that the description of this line in the defendants' chain of title was wrong, — that the line was at the old log fence instead of the river. If, in the title of lot 165, the old log fence had been designated as the line, the defendants would probably take a different view of this matter. They would be more likely to see what the real question in dispute was. So far as appears, the description in the defendants' chain of title did not originate with a grantor who owned both lots; and neither owner was conclusively bound by the description of the line in the other's chain of title.
It has been uniformly and repeatedly held in this state, that adjoining owners of land may locate their dividing line by parol agreement when its location is uncertain and there is controversy between them in respect to it. Sawyer v. Fellows, 6 N.H. 107; Gray v. Berry, 9 N.H. 473; Clough v. Bowman, 15 N.H. 504; Jones v. Dewey, 17 N.H. 596; Hobbs v. Cram,22 N.H. 130; Orr v. Hadley, 36 N.H. 575; Dudley v. Elkins, 39 N.H. 78; Thompson v. Major, 58 N.H. 242; Bartlett v. Young, 63 N.H. 265. Such an agreement does not create a new line and transfer a title to land from one party to the other, thereby conflicting with the statute of frauds, but simply locates on the ground the line to which the title on either side extends. It merely removes the uncertainty previously existing in respect to such location, and by so doing settles a controversy. The case falls within the general policy of the law, which allows parties to settle and adjust doubtful and disputed facts between themselves and holds them to the settlement when made in good faith. Vosburgh v. Teator, 32 N.Y. 561, 567; Pitkin v. Noyes, 48 N.H. 294, 304; Flannagan v. Kilcome, 58 N.H. 443, 444.
There being a controversy between the owners of the lots in 1878 respecting the dividing line, it follows from the foregoing decisions that the evidence introduced by the plaintiff tending to show that they then agreed upon the line was competent. The evidence was also sufficient to support the referee's finding that an agreement was made. The parties to this action are bound by the agreement, and consequently the plaintiff is entitled to judgment. *Page 403
The plaintiff is not entitled to the increased value of the trees cut, occasioned by the defendants' labor in converting them into wood. Foote v. Merrill, 54 N.H. 490; Beede v. Lamprey, 64 N.H. 510, 511. It not appearing that she suffered any substantial damage other than that arising from cutting the trees, her judgment should be for $30.15, with interest.
Judgment on the report for the plaintiff.
All concurred.