Berkshire Woollen Co. v. Day

66 Mass. 128

Opinion

Shaw, C. J.

Footnotes

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The first question is, whether a submission under a rule of court, of an action pending, can comprehend other matters in controversy between the parties, not embraced in the action, and we are of opinion that it can; Commonwealth v. Pejepscut Proprietors, 7 Mass. 399, 417; and that an award, assessing damages on all the claims referred, may be enforced by the court. One judgment is rendered by the arbitrators, and is affirmed or rejected by the court. It takes effect from the agreement of the parties in the submission, comprehended in and sanctioned by the rule of court, and confirmed by the judgment of the court.

Then, as to the agreement that the referees might fix the height of the dam. The effect of the award of the referees on this point is, to make a part of the dam a nuisance ; and their award is as good a basis for a judgment to abate it, as the verdict of a jury. The court are all of opinion that they have power to carry this judgment into effect. It is said that the only thing which the sheriff could do, would be to abate the whole dam; but this is not so ; the nuisance is only that part of the dam above the line fixed by the referees, and the sheriff can abate the whole nuisance, being down to that line. Now what does “ under their direction ” mean ? If we are right in our view of the nature of this award, it is not complete, and cannot be executed, until after it has been accepted by the court. “ Direction ” means general instructions as to the manner of doing it. If they have given general directions, which can be executed by any person skilled in such matters, then they have conformed to the terms of the submission. The parties can hardly have intended that the referees should execute the award, after its acceptance by the court. But if they did, that power is superadded, to be exercised after the award is accepted, and cannot affect the judgment of acceptance. We are inclined to the opinion that this is not a case, in which the plaintiff is entitled to judgment of abatement, as of right, under sect. 4 of Rev. Sts. c. 106 : for although there were several actions, no judgment had been rendered in either, before any one of the others was brought. The purpose of the 106th chapter of the revised statutes is, to give the plaintiff the same remedy at law, which he might otherwise obtain, less summarily, in equity.

Award accepted, and judgment thereon for the plaintiff, and that a warrant issue after the expiration of six months for the abatement of that part of the dam found by the award of the referees to be a nuisance.

Merrick, J., did not sit in this case, having been one of the referees.