By the Court,
Johnson, J.
The bill in this ..case was framed with a two-fold aspect, and contains an alternate prayer; first for the performance of the, award set'forth in the bill, and second, in case the award should be deemed invalid, then for relief against the injury sustained by. the alleged wrongful acts of the defendant, in the construction and maintenance of the mill dam.
Tins award is imperfect, and could not be enforced at law. It is not in accordance with the terms of the submission. [527]*527The value-of the property flowed, and the damage occasioned ¡by the flowage were not, as required by the submission, separately assessed by the arbitrators, and the alteration of this award by two of the arbitrators, after publication, and in-the.absence of the othei’, was without authority.
• The. testimony in the case, however, shows beyond any doubt, that -the matters submitted were acted upon by the arbitrators; that the assessments were actually made by, them ■ separately, and that their-judgment, passed upon the subject matter of the submission, strictly-in accordance witb the intention of the pax-ties;, and the imperfection in the award consists in a mistake, inadvertently made, in drawing it -np- It -is of a clerical nature. There was no mistake or error in -the exercise of the judgment of the-arbitrators upon the matter submitted; but only-in the communication of the ¡resxüt of the judgment.
It is unquestionably in the power of the Court to.correct this .mistake,;-and to decree a specific performance of .the award; and they will fio so, if the complainant has made out-such a case as demands the exercise of that power in his behalf. (4 J. Ch. R. 405.)
We have no hesitation in saying that if the complainant, is entitled .to. any..relief at the hands of this Court, it must be by - decreeing a performance of tbe award; and in .this respect, he stands on-a footing equally favorable as though the ¡award was perfect, with this difference: that if the award was perfect, it would of itself, without auy further proof,-imply, a-.legal right, upon which could he based the equitable relief; bnt inasmuch- as it has no binding -force, the complainant, before he can entitle-himself to the ¡relief he -asks,must showby extrinsic evidence that justice demands it.
But in the exercise of this discretionary power, .an award, though perfect, stands on the same -footing with a contract; and .Courts .of Equity will not grant this kind of relief-isx either,ease, .unless, from the complainant’s own showing, it is [528]*528subservient to the ends of justice. Judge Story, in treating upon this subject, says : “But as the'specific performance of awards, as well as of contracts, rests in the sound discretion of the Court, if upon the face of the award, or otherwise, it appears that there are just objections to enforcing it, Courts of Equity will not interfere.” (2 Story Eq. Pl. § 1459.) ,
The defendant is at liberty in all these cases, to make any equitable defence he can, against the relief prayed for, without regard to the strict legal liabilities of the parties; and fox* that purpose he may give evidence dehors the award or contract, to show that such a decree would be unjust.'
It was in view of this consideration of the case, that the complainant, having, as he rightfully suspected, an imperfect award, deemed it proper, himself, to set out all the proceedings upon which the award was founded, for the purpose of exhibiting to the Court the equity of his case; and it is upon a view of the whole case that we are to decide.
If, then, the complainant has shown, independently of the award, such a case as would entitle him to any relief, there can .be no good reason assigned, why that relief should not be in decreeing specific performance of the award, provided that neither the conduct of. the complainant, or the proceedings of the arbitrators, are liable to any just exceptions.
In the first place, then, what are the equities between the parties, independently of the awax-d? . The complainant alleges that in 1886, he became the owner of a part, and inT8ST,' of the remainder of the premises in question; that in the year last aforesaid, the defendant constructed his dam, which caused the flowage Complained, of; and-that after an unjust refusal of the defendant to abate the nuisance, he brought an action at law, to recover his damages, and recovered the sum of twenty-five dollars, and costs' of suit; that while he was proceeding to enforce the collection of said judgment,the defendant filed his bill in Chancery, to restrain the complainant'from collecting said judgment, and from further [529]*529prosecuting Mm at law, by reason or on account of said flow-age; and the complainant further alleges, that the said defendant, by various false and unfounded statements, contained-in his said bill of complaint, procured'a writ of injunction to issue, restraining said complainant, in the manner. aforesaid-; and that the condition of things thus substan-. tially remained until the submission to the arbitrators.
The defendant, in pursuance of the express requirement of the bill in this cause, files his answer under oath, and in answer thereto, and as responsive to said bill, he admits the ownership of the property in question', the construction of the dam, and the flowage of the complainant’s premises.
But he denies that the complainant has any just grounds of complaint by reason thereof because he says that the dam was constructed by the express license and consent of the complainant with a full and perfect knowledge of the consequences of such construction.
iAnd it was upon this ground, we may reasonably suppose, if indeed the record does not conclusively show, that the defendant- in his bill relied for relief against said judgment, and though we are not called upon to express an opinion, whether or not such ground could avail him against the effects- of that judgment, yet we have no difficulty in expressing an opinion, that it affords a good and perfect objection to the relief asked for by the complainant.
' The judgment at law is not conclusive of the equities between the parties so as to shut out such defence.
The complainant has his legal remedy, and if he asks for any thing more he must- show himself entitled to it, and that showing he has failed to make. A decree in his favor would be manifestly unjust and oppressive against the defendant.
And now as this award is imperfect, and the complainant having failed to make out an equitable case against the defendant .independently of the award, it would seem to dispose of the whole case.
[530]*530But there is another view of this case which suggests itself to our consideration. It may be urged with some degree of plausibility, at least, that the defendant by the terms of his submission to the arbitrators, virtually waived the objection which he now insists upon; that he thereby placed himself upon new grounds and upon new equities with the complainant upon the whole subject matter of the controversy.
And it would seem that he did, so lar as the submission was concerned, for that objection was not to be taken into consideration, or at least no reference was made to it in the contract of submission, and inasmuch as their determination was to be made upon personal inspection without any testimony, we cannot well see how it could have been otherwise.
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By the Court,
Johnson, J.
The bill in this ..case was framed with a two-fold aspect, and contains an alternate prayer; first for the performance of the, award set'forth in the bill, and second, in case the award should be deemed invalid, then for relief against the injury sustained by. the alleged wrongful acts of the defendant, in the construction and maintenance of the mill dam.
Tins award is imperfect, and could not be enforced at law. It is not in accordance with the terms of the submission. [527]*527The value-of the property flowed, and the damage occasioned ¡by the flowage were not, as required by the submission, separately assessed by the arbitrators, and the alteration of this award by two of the arbitrators, after publication, and in-the.absence of the othei’, was without authority.
• The. testimony in the case, however, shows beyond any doubt, that -the matters submitted were acted upon by the arbitrators; that the assessments were actually made by, them ■ separately, and that their-judgment, passed upon the subject matter of the submission, strictly-in accordance witb the intention of the pax-ties;, and the imperfection in the award consists in a mistake, inadvertently made, in drawing it -np- It -is of a clerical nature. There was no mistake or error in -the exercise of the judgment of the-arbitrators upon the matter submitted; but only-in the communication of the ¡resxüt of the judgment.
It is unquestionably in the power of the Court to.correct this .mistake,;-and to decree a specific performance of .the award; and they will fio so, if the complainant has made out-such a case as demands the exercise of that power in his behalf. (4 J. Ch. R. 405.)
We have no hesitation in saying that if the complainant, is entitled .to. any..relief at the hands of this Court, it must be by - decreeing a performance of tbe award; and in .this respect, he stands on-a footing equally favorable as though the ¡award was perfect, with this difference: that if the award was perfect, it would of itself, without auy further proof,-imply, a-.legal right, upon which could he based the equitable relief; bnt inasmuch- as it has no binding -force, the complainant, before he can entitle-himself to the ¡relief he -asks,must showby extrinsic evidence that justice demands it.
But in the exercise of this discretionary power, .an award, though perfect, stands on the same -footing with a contract; and .Courts .of Equity will not grant this kind of relief-isx either,ease, .unless, from the complainant’s own showing, it is [528]*528subservient to the ends of justice. Judge Story, in treating upon this subject, says : “But as the'specific performance of awards, as well as of contracts, rests in the sound discretion of the Court, if upon the face of the award, or otherwise, it appears that there are just objections to enforcing it, Courts of Equity will not interfere.” (2 Story Eq. Pl. § 1459.) ,
The defendant is at liberty in all these cases, to make any equitable defence he can, against the relief prayed for, without regard to the strict legal liabilities of the parties; and fox* that purpose he may give evidence dehors the award or contract, to show that such a decree would be unjust.'
It was in view of this consideration of the case, that the complainant, having, as he rightfully suspected, an imperfect award, deemed it proper, himself, to set out all the proceedings upon which the award was founded, for the purpose of exhibiting to the Court the equity of his case; and it is upon a view of the whole case that we are to decide.
If, then, the complainant has shown, independently of the award, such a case as would entitle him to any relief, there can .be no good reason assigned, why that relief should not be in decreeing specific performance of the award, provided that neither the conduct of. the complainant, or the proceedings of the arbitrators, are liable to any just exceptions.
In the first place, then, what are the equities between the parties, independently of the awax-d? . The complainant alleges that in 1886, he became the owner of a part, and inT8ST,' of the remainder of the premises in question; that in the year last aforesaid, the defendant constructed his dam, which caused the flowage Complained, of; and-that after an unjust refusal of the defendant to abate the nuisance, he brought an action at law, to recover his damages, and recovered the sum of twenty-five dollars, and costs' of suit; that while he was proceeding to enforce the collection of said judgment,the defendant filed his bill in Chancery, to restrain the complainant'from collecting said judgment, and from further [529]*529prosecuting Mm at law, by reason or on account of said flow-age; and the complainant further alleges, that the said defendant, by various false and unfounded statements, contained-in his said bill of complaint, procured'a writ of injunction to issue, restraining said complainant, in the manner. aforesaid-; and that the condition of things thus substan-. tially remained until the submission to the arbitrators.
The defendant, in pursuance of the express requirement of the bill in this cause, files his answer under oath, and in answer thereto, and as responsive to said bill, he admits the ownership of the property in question', the construction of the dam, and the flowage of the complainant’s premises.
But he denies that the complainant has any just grounds of complaint by reason thereof because he says that the dam was constructed by the express license and consent of the complainant with a full and perfect knowledge of the consequences of such construction.
iAnd it was upon this ground, we may reasonably suppose, if indeed the record does not conclusively show, that the defendant- in his bill relied for relief against said judgment, and though we are not called upon to express an opinion, whether or not such ground could avail him against the effects- of that judgment, yet we have no difficulty in expressing an opinion, that it affords a good and perfect objection to the relief asked for by the complainant.
' The judgment at law is not conclusive of the equities between the parties so as to shut out such defence.
The complainant has his legal remedy, and if he asks for any thing more he must- show himself entitled to it, and that showing he has failed to make. A decree in his favor would be manifestly unjust and oppressive against the defendant.
And now as this award is imperfect, and the complainant having failed to make out an equitable case against the defendant .independently of the award, it would seem to dispose of the whole case.
[530]*530But there is another view of this case which suggests itself to our consideration. It may be urged with some degree of plausibility, at least, that the defendant by the terms of his submission to the arbitrators, virtually waived the objection which he now insists upon; that he thereby placed himself upon new grounds and upon new equities with the complainant upon the whole subject matter of the controversy.
And it would seem that he did, so lar as the submission was concerned, for that objection was not to be taken into consideration, or at least no reference was made to it in the contract of submission, and inasmuch as their determination was to be made upon personal inspection without any testimony, we cannot well see how it could have been otherwise.
If this position could be successfully urged by the complainant, and the Court be-limited to the terms of the submission in- their inquiry, then the complainant might be entitled to a decree upon the award, unless it should be made to appear that there was something inequitable or unjust in the award; that is to say, unless there was something in the conduct of the complainant, or some error of mistake made by the arbitrators in the execution of their power, having strict reference to the terms of the submission, the effects of which would prejudice the rights of the defendant.
•No one can read the record in this case without beinj? strongly impressed with the idea that the defendant would suffer great injustice by being compelled to abide by this award — forty acres of land, or', thereabouts, and Ms saw-mill and water power, were valued by the arbitrators at the small sum of $112, and the sum of $162 50 was to be deducted from that, on account of the damages sustained by the complainant by reason of the flowage of his land, leaving the sum of $279 50, only, to be paid for the defendant’s whole property. None of the witnesses on the trial valued the property at less than $1000, and some of them as high as $1500.
[531]*531It is unnecessary to impute any improper conduct to the arbitrators, because their own evidence explains it; they all concur in the statement that they did not in their estimation take the value of the water .power into consideration; and this is evident from another fact, viz: from the value .they ■set upon the complainant’s land; they valued fifty-three acres of his land at the sum of only $79 50. -
It is manifestly clear, then, that they valued the two pieces of property independently of the water power, thereby enabling the complainant, by means ' of his right of. election, to buy or sell at the appraised value; to acquire a valuable water power without paying any consideration therefor.
This was an error on the part of the arbitrators; one going to the merits, and one for which a Court of Equity would set aside the award, (Van Cortland vs. Underhill, 17 J. R. 405,) and one which is conclusive against the rights of this complainant for the relief hé asks.
The decree of the Circuit Court below, dismissing the’ complainant’s bill, must -be affirmed, with costs.