This opinion was filed August 1, 1901, but remittitur held up on petition for rehearing until
November 29, 1901. The opinion of the Court was delivered by
This action was instituted to enforce an award by a board of surveyors appointed under the provision of a joint resolution of the General Assembly, approved January 5, 1895, providing for the location of the boundary line between Greenville and Spartanburg counties, at and near Pelham factory. This appeal comes from the decree of Judge Gage, dismissing the complaint, which decree is officially reported herewith. For a full statement of the issues presented by the pleadings, the Reporter will insert in his report hereof a copy of the complaint as to the first cause of action, which alone concerns this appeal, and a copy of the answer thereto. The three surveyors appointed were Geo. E. Ladshaw, appointed by the supervisor of Spartanburg County, I.H. Harrison, appointed by the supervisor of Greenville County, and William J. Kirk, chosen by the two above named surveyors. These surveyors, on March 10, 1896, met at the stone near Tryon Mountain, and from that point began the work of location. The surveyors differed at the outset as to what they were required to do under the joint resolution. The joint resolution, 21 Stat., 1143, enacted that the "three surveyors shall locate the boundary line between Spartanburg and Greenville counties, at and near Pelham factory, in accordance with the marks, monuments, courses and distances set out in sections 419 and 433 of the General Statutes of 1882, being sections 478 and 492 of the Revised Statutes of 1893, vol. I." The description of the boundary line between Greenville and Spartanburg counties contained in sec. 492, supra, is as follows: "Commencing on the North Carolina line at a stone marked `S.C. ' on the east side of Blackstock's road near Tryon Mountain and running south 2 degrees east twenty-two miles and sixty-four chains, or until it intersects the Enoree River at
Abner's mill on said river, c." Ladshaw's view was that the statute required a survey of a new and straight line on the statutory course, with declination of needle reduced to the time of Salman's survey in 1820, while Harrison's view was that the statute required a location or retracing of the old line between the counties known as the Indian boundary, which was described as south 2 deg. east. Kirk agreed with Harrison's view. Two corps were organized, one under Ladshaw and one under Harrison, and each party proceeded to "locate" the line according to his plan, with a view to a conference afterwards. During the survey, Kirk seems to have been sometimes with Ladshaw's party but generally with Harrison's. No conference was had along the line among the three surveyors, except once at the stone at Gap Creek road, which Harrison and Kirk, upon the testimony taken, concluded was a mark of the Indian boundary line which they were endeavoring to locate. Ladshaw completed his line about March 28th, 1896, and left the field, while Harrison and Kirk remained a day or two longer. On April 1, 1896, Ladshaw wrote to Harrison as follows: "Having completed my preliminary survey and working over my notes, shall be ready for a conference with yourself and Capt. Kirk when you shall have gotten ready with your work. Please advise me." By registered letter, dated April 6, 1896, Harrison wrote in reply: "I will be glad to meet you in Greenville on Thursday, 9th, or Friday, 10th, next, as Mr. Kirk writes me you will be absent on Wednesday next. Will remain in Greenville until Saturday evening, 11th. Will take until that time to finish plats, c." To which Ladshaw by letter, dated April 10th, 1896, replied: "Your favor of the 6th inst. at hand and noted. I am sorry that business engagements made some time ago will preclude the possibility of my reaching Greenville for several days, also my brother and partner is sick, and we have been unable to prepare the work for inspection as yet. Will write you again as soon as possible." Kirk, who resides at Cokesbury, in Greenwood County, was in Greenville on the
9th and 10th for a conference, having been notified by Harrison. Harrison, in his testimony, at folio 337, says: "On the 11th, Mr. Kirk came to my room and asked me if I had heard anything from Mr. Ladshaw. I told him I had not. That was early on the 11th, and he says: `Well, what do you propose to do?' and I told him I didn't know whether to wait any longer or not. A young lady had prepared these reports. I was done, and got the copies and read them over. After doing that, we signed them. He carefully read that report himself and examined this original there. I don't know whether this is the one or not. I made three of them." At folio 115, when asked whether he received Ladshaw's letter before he made and filed those reports, Harrison answered: "I received that letter there — I believe I did, I won't be positive — I suppose I did, though." And at folio 188, Harrison states that he thinks he got the letter after he left Greenville. The reports were filed some time after the 11th, and this may explain the apparent inconsistency between the statements of Mr. Harrison. We conclude upon the whole testimony that at the time of the making of the award by Harrison and Kirk in the absence of Ladshaw, Harrison had not received the letter of Ladshaw. The Circuit Judge in his decree says: "I am satisfied the failure of the surveyors to meet and confer was not due to any unworthy desire to take advantage the one of the other; but that it resulted from a lack of conception of the grave duties to be performed, and the way in which they should have been performed."
In view of the foregoing, we think appellants' first exception is well taken and must be sustained. That exception is as follows: "Because the Circuit Judge erred in holding that the award of the surveyors was made `without a reasonable opportunity for a conference; it was made without the joint and necessary consideration of three men, and without a reasonable opportunity therefor;' whereas, the testimony clearly shows, and the Judge should have held, and erred in not holding, that each of the surveyors
had due, definite and sufficient notice of the time and place of the conference to be held, to wit: in the city of Greenville, S.C. on April 8th, 9th, 10th and 11th, 1896; and the Judge erred in not holding that, under these circumstances, Harrison and Kirk could legally meet and make the report and award, in the absence of Ladshaw, they being a majority of the board — especially so, when the testimony shows that they had remained in Greenville several days under said appointment and hearing nothing from Ladshaw." Whatever may be the rule elsewhere, the rule in this State is that an award by a majority of arbitrators is valid, whether the matter submitted be private or under a rule of Court. Lockart v. Kidd, 2 Mills, 217; Leatherwood
v. Woodroof, 2 Brev., 380; or by contract of the parties —Black v. Pearson, 1 McCord, 137; or whether the matter be public, as in this case — Abbeville v. McMillan, 52 S.C. 72. In all cases, however, the arbitrators should confer; but if after due notice one of the arbitrators fail for any reason to attend the appointed conference, the majority may lawfully proceed to make the award. In 2 A. E. Enc.
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This opinion was filed August 1, 1901, but remittitur held up on petition for rehearing until
November 29, 1901. The opinion of the Court was delivered by
This action was instituted to enforce an award by a board of surveyors appointed under the provision of a joint resolution of the General Assembly, approved January 5, 1895, providing for the location of the boundary line between Greenville and Spartanburg counties, at and near Pelham factory. This appeal comes from the decree of Judge Gage, dismissing the complaint, which decree is officially reported herewith. For a full statement of the issues presented by the pleadings, the Reporter will insert in his report hereof a copy of the complaint as to the first cause of action, which alone concerns this appeal, and a copy of the answer thereto. The three surveyors appointed were Geo. E. Ladshaw, appointed by the supervisor of Spartanburg County, I.H. Harrison, appointed by the supervisor of Greenville County, and William J. Kirk, chosen by the two above named surveyors. These surveyors, on March 10, 1896, met at the stone near Tryon Mountain, and from that point began the work of location. The surveyors differed at the outset as to what they were required to do under the joint resolution. The joint resolution, 21 Stat., 1143, enacted that the "three surveyors shall locate the boundary line between Spartanburg and Greenville counties, at and near Pelham factory, in accordance with the marks, monuments, courses and distances set out in sections 419 and 433 of the General Statutes of 1882, being sections 478 and 492 of the Revised Statutes of 1893, vol. I." The description of the boundary line between Greenville and Spartanburg counties contained in sec. 492, supra, is as follows: "Commencing on the North Carolina line at a stone marked `S.C. ' on the east side of Blackstock's road near Tryon Mountain and running south 2 degrees east twenty-two miles and sixty-four chains, or until it intersects the Enoree River at
Abner's mill on said river, c." Ladshaw's view was that the statute required a survey of a new and straight line on the statutory course, with declination of needle reduced to the time of Salman's survey in 1820, while Harrison's view was that the statute required a location or retracing of the old line between the counties known as the Indian boundary, which was described as south 2 deg. east. Kirk agreed with Harrison's view. Two corps were organized, one under Ladshaw and one under Harrison, and each party proceeded to "locate" the line according to his plan, with a view to a conference afterwards. During the survey, Kirk seems to have been sometimes with Ladshaw's party but generally with Harrison's. No conference was had along the line among the three surveyors, except once at the stone at Gap Creek road, which Harrison and Kirk, upon the testimony taken, concluded was a mark of the Indian boundary line which they were endeavoring to locate. Ladshaw completed his line about March 28th, 1896, and left the field, while Harrison and Kirk remained a day or two longer. On April 1, 1896, Ladshaw wrote to Harrison as follows: "Having completed my preliminary survey and working over my notes, shall be ready for a conference with yourself and Capt. Kirk when you shall have gotten ready with your work. Please advise me." By registered letter, dated April 6, 1896, Harrison wrote in reply: "I will be glad to meet you in Greenville on Thursday, 9th, or Friday, 10th, next, as Mr. Kirk writes me you will be absent on Wednesday next. Will remain in Greenville until Saturday evening, 11th. Will take until that time to finish plats, c." To which Ladshaw by letter, dated April 10th, 1896, replied: "Your favor of the 6th inst. at hand and noted. I am sorry that business engagements made some time ago will preclude the possibility of my reaching Greenville for several days, also my brother and partner is sick, and we have been unable to prepare the work for inspection as yet. Will write you again as soon as possible." Kirk, who resides at Cokesbury, in Greenwood County, was in Greenville on the
9th and 10th for a conference, having been notified by Harrison. Harrison, in his testimony, at folio 337, says: "On the 11th, Mr. Kirk came to my room and asked me if I had heard anything from Mr. Ladshaw. I told him I had not. That was early on the 11th, and he says: `Well, what do you propose to do?' and I told him I didn't know whether to wait any longer or not. A young lady had prepared these reports. I was done, and got the copies and read them over. After doing that, we signed them. He carefully read that report himself and examined this original there. I don't know whether this is the one or not. I made three of them." At folio 115, when asked whether he received Ladshaw's letter before he made and filed those reports, Harrison answered: "I received that letter there — I believe I did, I won't be positive — I suppose I did, though." And at folio 188, Harrison states that he thinks he got the letter after he left Greenville. The reports were filed some time after the 11th, and this may explain the apparent inconsistency between the statements of Mr. Harrison. We conclude upon the whole testimony that at the time of the making of the award by Harrison and Kirk in the absence of Ladshaw, Harrison had not received the letter of Ladshaw. The Circuit Judge in his decree says: "I am satisfied the failure of the surveyors to meet and confer was not due to any unworthy desire to take advantage the one of the other; but that it resulted from a lack of conception of the grave duties to be performed, and the way in which they should have been performed."
In view of the foregoing, we think appellants' first exception is well taken and must be sustained. That exception is as follows: "Because the Circuit Judge erred in holding that the award of the surveyors was made `without a reasonable opportunity for a conference; it was made without the joint and necessary consideration of three men, and without a reasonable opportunity therefor;' whereas, the testimony clearly shows, and the Judge should have held, and erred in not holding, that each of the surveyors
had due, definite and sufficient notice of the time and place of the conference to be held, to wit: in the city of Greenville, S.C. on April 8th, 9th, 10th and 11th, 1896; and the Judge erred in not holding that, under these circumstances, Harrison and Kirk could legally meet and make the report and award, in the absence of Ladshaw, they being a majority of the board — especially so, when the testimony shows that they had remained in Greenville several days under said appointment and hearing nothing from Ladshaw." Whatever may be the rule elsewhere, the rule in this State is that an award by a majority of arbitrators is valid, whether the matter submitted be private or under a rule of Court. Lockart v. Kidd, 2 Mills, 217; Leatherwood
v. Woodroof, 2 Brev., 380; or by contract of the parties —Black v. Pearson, 1 McCord, 137; or whether the matter be public, as in this case — Abbeville v. McMillan, 52 S.C. 72. In all cases, however, the arbitrators should confer; but if after due notice one of the arbitrators fail for any reason to attend the appointed conference, the majority may lawfully proceed to make the award. In 2 A. E. Enc. Law, 645, it is stated, with numerous citations: "Where the submission provides for the appointment of two arbitrators, who are to choose a third to act with them, if one of the arbitrators, for any reason, stays away from the meetings, unless it be by fraud on the part of the other arbitrators or the parties, after he has received due notice, and has been given an opportunity to attend, the others may decide without him, and their award be upheld." In this connection we call attention to the allegation in the 8th paragraph of the complaint, expressly admitted in 1st paragraph of the answer, viz: "That the said three surveyors went over the line indicated in accordance with the instructions contained in said joint resolution, and on the 11th day of March, 1896, a majority of them, to wit: I.H. Harrison and W.J. Kirk, met at Greenville, notice of said meeting having been previously given to W.E. Ladshaw, the other surveyor, who declined to attend, and agreed upon and filed their report,
fully and minutely fixing and locating the disputed boundary line." The object of submitting a controversy to arbitrators is to secure a settlement of the matter in dispute by a tribunal of the parties' own choosing, which shall do substantial justice without being restricted by the technical rules of law. Courts favor awards and will indulge every reasonable presumption to uphold them, and whoever assails them has the burden of clearly establishing their invalidity. The joint resolution manifestly contemplated a final settlement of the boundary dispute, and provided for a tribunal to be selected by the disputants. The same general rules, therefore, must be observed in this case as in the case of an award by arbitrators appointed under a rule of Court or by contract of the parties. To avoid an award, the resisting party must show that the arbitrators (1) exceeded their power, in which case the award may nevertheless be held valid as to the separable part of the award which is within the terms of submission, McCall v. McCall, 36 S.C. 86; or (2) there must be shown fraud, corruption or partiality on the part of the arbitrators; or (3) some gross and palpable mistake of law or fact, appearing on the face of the award, or by admission of the arbitrators, which materially affected the award and made it operate contrary to the intention of the arbitrators. Alwyn v. Perkins, 3 DeS., 296; Mulder v.Cravat, 2 Bay, 370; Askew v. Kennedy, 1 Bail., 46; Aiken v.Bolan, 1 Brev., 239; Shiver v. Ross, 1 Brev., 293; Bollman
v. Bollman, 6 S.C. 42; Rounds v. Mfg. Co., 58 S.C. 333. The cases distinctly hold that the Court will not retry the matter submitted to arbitration on its merits. The testimony will not justify a conclusion that there was any fraud, corruption or partiality on the part of the arbitrators, and we do not understand that the Circuit Court so held. As it seems to us, however, the Circuit Court fell into the error of practically retrying the dispute submitted to the arbitrators and refusing to enforce the award, because upon the testimony taken at the trial he reached the conclusion that the disputed boundary had not been accurately located. There
was no mistake of law on the part of the arbitrators, for the Circuit Court, as we think correctly, agreed with the view of Harrison and Kirk that it was their duty under the statute to locate the old Indian boundary, and the report of Harrison and Kirk shows that they had located such boundary. Whether the boundary was correctly located upon the evidence submitted to the arbitrators, was for the determination of the arbitrators, as the triers of such facts. Such was the dispute they were called upon to finally settle, and in the absence of any showing of fraud, corruption or partiality, or gross and palpable mistake appearing on the face of the award, it must be held conclusive. The foregoing conclusions will render it unnecessary to further notice the exceptions by appellant.
We will notice a ground urged by the respondent, after proper notice, in support of the decree, viz: that the surveyor appointed on behalf of Greenville County, I.H. Harrison, was not appointed within six months after the approval of the joint resolution, and, therefore, that the board of arbitrators was not legally constituted. Upon this matter the Circuit Court finds that Spartanburg County within the prescribed time appointed Ladshaw, and Greenville County within like time appointed O.J. Bond; that Bond was unable to act when the time to make the survey arrived, and after the 5th July, 1895, Greenville County appointed Harrison in Bond's stead. We hold with the Circuit Court, that Harrison's appointment was valid. The parties have dealt with Harrison as arbitrator throughout the proceedings without objection, and cannot now be heard to object.
The other grounds urged by respondent in support of the decree have been sufficiently considered by what has been already said and are overruled.
The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.
Petition for rehearing was refused, November 29, 1901, in the following order: