Pike v. Gage

29 N.H. 461

• Court: Superior Court of New Hampshire
• Decided: December 15, 1854
• Status: Published

Opinion

Gilchrist, C. J.

The injury alleged is that the defendants kept a dam on the brook above the plaintiff’s shingle mill, obstructing the flow of water to the mill, and causing it to flow out of the channel and across the plaintiff’s land into the brook below the mill, thus depriving him of the use of the mill, and injuring the land.

. The matter was submitted to arbitrators, and at the hearing the plaintiff made no claim on account of the injury to the land, and upon the trial he alleged that he made no claim at the hearing on account of the diversion of the water.

The submission was of all demands, &c., and was couched in the most comprehensive terms, including all controversies of whatever kind, and especially, whether the defendants had the right to stop the water from the plaintiff’s mill, and-also the rights and liabilities of the parties in relation to the use of the water, and stopping it.

The arbitrators awarded that the defendants had the right to stop enough water from the shingle mill for the use of their saw mill, by a dam above the Durgin bridge, and that they should not in any other manner obstruct the water.

It is contended that the award is void for uncertainty. But it seems to us that the matter submitted was adjudicated upon, and the judgment of the arbitrators expressed in the clearest language. The first matter submitted was, whether the defendants had a right to stop the water from the plaintiff’s mill, and the award is that they had this right, to be exercised by a dam above the Durgin bridge. We think no language could make this clearer.

The arbitrators also exclude the conclusion that the defendants should in any other manner obstruct the water.

The parties also submitted the question of their rights and liabilities in relation to the use of the water, and stopping it. The arbitrators have also awarded upon this question. They have decided that the defendants may stop the water in a prudent, proper and judicious manner; that the dam should be near the Durgin bridge, at the place where the dam now stands, and at its present height; that they may use water enough to operate the saw mill as it has been operated since the dam near the bridge has been built, and that they shall not in any other manner, or for any other purpose, stop the water, but shall permit the plaintiff to use it without molestation.

Now it would be very difficult to make the award more specific, without going so much into detail as would open a door to future litigation, and thereby defeat the object of the parties. It would be difficult, for instance, to specify in an award how the mill has been operated heretofore. That is a question of fact, upon which there may be contradictory evidence, and if the plaintiff thinks the defendants have operated their saw mill in a different manner, the question is a proper one for the jury.

The award is very general, and orders releases to be executed, and is a bar to all actions for causes existing prior-to the time of the submission. Whether or not the award isa bar to any claim for injury to the plaintiff’s land since the date of the submission, depends on the question whether such injury would result from stopping in a prudent, proper and judicious manner, enough water to operate the saw mill; and this, as has been said before, is a question of fact. If such injury is a necessary consequence of the existence of the dam, the award settles the right to keep up the dam, and would seem, therefore, to dispose of a claim of this character. If it is not a necessary consequence of the dam, it would seem that the plaintiff, upon proving that the water was stopped in an improper manner, would be entitled to recover.

Upon the trial, the plaintiff proposed to prove that the award was obtained by testimony that the defendants had never used the dam, or controlled the water, to the injury of the plaintiff. But testimony of this kind cannot be received. An award duly made is conclusive, unless fraud or eorruption or mistake be shown. The evidence laid before the arbitrators cannot be inquired into for the purpose of setting aside the award. It is a judgment rendered by a tribunal selected by the partiés, although not a formal judgment; and evidence to prove how the award was obtained amounts to an explanation of the award by parol, which is inadmissible ; and although the referees might have erred in judgment, still, if their judgment had been fairly exercised, their award is good. Greenough v. Rolfe, 4 N. H. Rep. 357; Carey v. Wilcox, 6 N. H. Rep. 177; Aldrich v. Jessiman, 8 N. H. Rep. 516. So an error in the application of the rules of evidence will not alone constitute a sufficient reason for setting aside an award. Johnson v. Noble, 13 N. H. Rep. 286; Fuller v. Wheelock, 10 Pick. 136; Hollingsworth v. Leiper, 1 Dall. 161.

. These cases are sufficient to show that the judgment of arbitrators, as to the admission of evidence, is final and conclusive, and therefore the fact that the award was obtained by such testimony as has been mentioned, furnishes no ground, in the absence of fraud, for setting it aside.

Upon consideration of these objections, the judgment of the court is that the award is valid.