Wyman v. Hammond

Kent, J. The question is whether the award is conclusive, and a bar to the prosecution of this writ of entry. It appears, from the report, that the only question in dispute between the parties was the dividing line between their respective lots of land, — that some years ago the parties referred the settlement of the line to M. B. Bliss, who made a survey and made an award, establishing the line. Afterterwards the parties disagreed about the line and entered into a new reference to J. A. Pettingill. This submission and the award made by Pettingill are made part of the case. The first question is, what was submitted? The parties had a right to submit the whole question anew, disregarding the former adjudication, or they might submit any single question arising under that award first made. On inspection of the paper containing the last submission, it is evident that the question then in dispute was, where on the face of the earth was the line established by Bliss ? It is true that the first part of the submission is general in its terms, but the conclusion is in these words, — " And it is hereby agreed by the parties that the said Pettingill is to run said line agreeable to Moses B. Bliss’ decision of Aug. 18, 1860, according to said Pettingill’s best judgment.” This language limits and qualifies all that precedes it. It authorizes the referee to determine where the line established by Bliss is in fact to be found, according to his best judgment, after hearing the parties and their proof. Any other construction would render the words above quoted nugatory and idle. But they cannot be disregarded. They are dis [537] tinct and absolute, and show that the parties intended to limit the power of the new arbitrator, to the single point above indicated. It is undoubted law that the award must follow the agreement of submission. It must determine the question submitted. The arbitrator cannot assume to determine points not fairly included, expressly or by necessary implication, in the submission. If he does, his award, as to such points, is invalid and not binding on the parties. It is unnecessary to cite authorities on this point. The award makes no reference to the Bliss line, but declares that, upon full consideration, he is of "opinion that the line in dispute between the contending parties should be according to an old and well marked line, traced by me, Aug. 9, 1864.” He then proceeds to describe the courses, distances and monuments on that old line. It is not pretended that this old line is the line established by Bliss. If parol evidence would be admissible, if offered by the defendant, to show their identity, none such was offered. On the contrary, the plaintiff offered to prove that it was not, and that the Bliss line was not examined or considered by Pettingill. The Judge ruled that the award was conclusive, and that the evidence offered would not authorize a jury to go behind it. But, to be thus conclusive, it must on its face be a clear and distinct determination, in express terms, of the exact point submitted. It is evident that this award was not in any part based on the former adjudication. It purports to determine the line on the whole case, as if it had been generally and unqualifiedly referred to his determination. The award does not follow the submission, and. therefore is not binding or conclusive on the parties. According to agreement of the parties, The case must stand for trial. Appleton, C. J., Walton, Dickerson, Daneorth and Tapley, JJ., concurred.