The land in controversy contains about an acre and it seems is broken and too rough for cultivation, and valuable only for what timber grows upon it and as a woods pasture for stock on adjoining land. Both the plaintiff and defendant claim under grants from the State and mesne conveyances. The plaintiff claims under a grant to his father, Richmond Moore, issued 16 April, 1873, and conveyance to plaintiff by deed 24 April, 1912. The defendant claims under a grant to Thomas Henderson issued 11 October, 1783, upon an entry taken out by Governor Alexander Martin, and mesne conveyances down to defendant. The question at issue in- this action is, Which has the better title ?
There is testimony that the defendant and those under whom he claims have been in possession of the small tract in dispute for more than twenty years before the beginning of this action, and the plaintiff has not had seizin of the land in dispute within twenty years, unless the possession of the defendant was the possession of the plaintiff, by estop-pel, as was held by the court.
There was an action in 1873, by Jesse Moore, under whom the defendant claims, against Richmond Moore, the grantor of the plaintiff, putting in controversy the title to the land now in dispute, and at September Term, 1873, the cause was referred to- an arbitrator, whose award was to be a rule of court. Such award was filed at Spring Term, 1874, of Caldwell, and by this award the line in controversy was determined as now claimed by the plaintiff.
We need not consider the objections raised by the defendant to the regularity of that proceeding, for, conceding that it was regular in all respects, it was an estoppel of that date, and the defendant cannot claim under any chain of title reaching beyond the judgment entered in 1874. To that extent it is an estoppel. But there is evidence here of uninter*75rupted adverse possession of tbe land bj tbe defendant and bis grantor, exercising dominion of an owner over tbe locus in quo, claiming it as bis own, without protest or interruption from tbe plaintiff in tbis action or those under whom be claims. Taking tbis evidence as true, tbe defendant has acquired a new estate by disseizin, acquiesced in for forty years by tbe plaintiff. Such new estate can thus be acquired. Call v. Dancy, 144 N. C., 497.
There was evidence that tbe defendant and bis grantor fenced up tbe locus in quo, used it as a pasture, and got timber from it, barn lumber, and firewood. Tbe land being unfit for cultivation, such use of it was evidence of adverse possession, which should have been submitted to tbe jury, for it was evidence of an appropriation of tbe land for tbe purposes for which it was best, if not solely, adapted. If tbe jury bad passed upon tbe question and found that such possession was adverse and continuous for more than twenty years prior to tbe beginning of tbis action, tbe plaintiff could not recover. Eevisal, 383.
Tbe court below, however, instructed tbe jury that in view of tbe finding of tbe jury to tbe third issue, i. e., that tbe line bad been established by tbe proceeding and judgment in 1874, tbe court held as a matter of law that tbe jury should respond to issues 8 and 7 (which tbe jury bad left unanswered) that tbe defendant bad not been in possession of tbe land under colorable title for seven years next preceding tbe commencement of tbis action, nor bad held it adversely for more than twenty years prior to tbe commencement of this action.
Tbe court evidently was of opinion that tbe proceeding in 1874 having adjudicated and settled tbe line, as between tbe parties under whom tbe plaintiff and defendant respectively claim, that such adjudication was an estoppel, and that the defendant could not set up possession since contrary thereto, however long continuued. Tbe evidence of such possession should have been submitted to tbe jury.
Error.