Jackson ex dem. Van Alen & Van Alen v. Ambler

Spencer, J., delivered the opinion of the court. This case has been very ably and elaborately argued, and has received all the examination in our power to give it.^It cannot, at this' day, be controverted, that courts of justice are liberal in their construction of awards; many cases in which they were formerly held to be void as uncertain, or wanting mutuality, have, for a long series of years, been overruled; and we have no rea- ' son to regret the change. Arbitrations are domestic tribunals; '■ the arbitrators are chosen by the parties themselves, and fre- 1 quently mingle in their decisions their own knowledge of the i matters in dispute. ^Generally speaking, their awards, though > intelligible, are not drawn up with technical accuracy; their < ends are mainly honest, and tend to terminate intricate disputes with very little expense to the parties : for all these reasons they ought to be viewed indulgently. The commissioners, as the act under which they derive their appointment styles them, have been selected by the parties, and this selection has been sanctioned by the legislature; the reasons which induced this are stated in the preamble to the act. Divers disputes and controversies had subsisted between the persons claiming a tract of land granted to John Hendrix De Bruyn, in 1686, of the one part, and others who are named in the preamble, and who were in possession of land in the town of Kinderhook, of the other part, relative to the right and title to the said lands so possessed, and which were claimed by the said parties of the first part, by virtue of said patent, which said disputes and controversies could not be finally determined without a number of law suits, attended with great delay and expense to the parties. It then states that divers of the parties were ipfants, and some under coverture, ■ by means whereof it was — 104 — difficult, if not impracticable, to have a determination of the disputes and controversies conclusive and binding without the aid of the legislature. It then sets forth that they had agreed to unite in an application to the legislature for an act appointing commissioners finally to determine the right and title of the said parties to the lands possessed by the parties of the second part, and claimed by the parties of the first part, and all disputes and controversies relative to the same. On this state of the case, the legislature passed the act, drawn up by the parties, vesting the commissioners named by them with powers which will be adverted to; the commissioners have heard the parties, and two of them have united in a determination, the validity of which is drawn in question by the demurrer to the defendant’s plea. The three general objections to the decision of the commissioners are, 1st. That they have not decided according to law : 2d. That their decision is not co-extensive with the subject' matter submitted : 3d. That it is uncertain, and not final. The first objection has been urged, in reference to the decision of the court for the correction of errors, upon the extent and boundaries of De Bruyn’s patent. It was, probably, decided in that case (8 Johns. Rep. 495.) that a line along the west branch of the fish lake in its whole extent, was the eastern boundary of the patent; I say, probably, because the manner of collecting the decisions in that court, unfortunately, in almost every case, where several opinions are given, leave it doubtful what is the decision in any given case. Admitting it, howeyer, to have been so decided, that decision was only applicable to the facts then before the court. It was the law of that case, and could not conclude the party upon a different state of facts. It is manifest, from the preamble of the act already stated, as well as from its body, that the parties to the act intended to refer the question, as to the extent and boundaries of the patent, to the final decision of the commissioners. The second section of the act declares it to be lawful for the commissioners to hear and examine all disputes and controversies between the said parties to the title to the said lands, the rights and remedies of the parties, and all claims made by them to said land, or to any part thereof, by any or either of them, and finally to determine — 105 — Such disputes, controversies, and claims; and that their detefmination shall be absolutely binding, and shall, to all intents, constructions, and purposes, whatsoever, vest the right, title, and interest of every part of said lands in such person or persons, and for such estate Or estates, and in such way or manner as shall be named or specified in such determination. The sixth section is, if possible, more explicit; it enacts, that before the commissioners shall enter upon the duties of their office, the attorney for the parties of the first part, shall deliver to the commissioners, the names of all such persons as claim to be proprietors of such lands as are possessed by the said ■parties of the second part, within what is claimed to be the bounds of said patent; and the attorney for the parties of the second part shall also deliver td the said commissioners the names of all such persons as claim to be possessors, owners, or occupants of any lands so possessed within the disputed lines. There was nothing in controversy between the parties but the boundaries of De Bruyn's patent. It was conceded by the preamble to the act, as well as its provisions, that the parties of the first part were legitimate claimants of Be Bruyri’s patent; no deduction of title was to be made out j the names were to be furnished to the commissioners, of those who claimed to be proprietors on the one side, and on the other of those who claimed to be possessors, owners, or occupants of lands within the disputed lines; and the whole determination proceeds on the ground that nothing was in dispute but the boundaries of the patent, and whether the remedy was lost in those cases where the possessions fell within the line established by the commissioners. It is a novel objection that an award is against law, where it decides upon a complicated question of boundary, and where that very question was the principal matter submitted. Where an arbitrament takes place, by the mere act of the parties, it cannot be made an objection to an award, that it is against law. (Kyd, 185. 237, 238., and 3 Caines’ Rep. 167. Shepard v. Watrous.) In Cranston and another v. Executors of Kenny, (9 Johns. Rep. 212.,) a motion was made to set aside an award, where the submission was, by the act of the parties, without any rule or order of the court, for a mistake in law; and, on a review of all the cases, we denied the motion. If, then, we cannot notice the objection when the submission — 106 — is by the act of the parties," much less can we do it when to the act of the,parties is superadded an act of the legislature, and the very point submitted is the question of law, in reference to which, it is alleged, the decision is against law. The second objection, that the award is not co-extensive with the subject matter submitted, is founded on this, that by the 12th section of the act, “ the parties of the first part were to be at full liberty to avail themselves on the hearing of all and every right, title, or claim, which they might have to the said premises, or any part thereof, whether derived from the said patent, or otherwise; and that it does not appear, by the award, that such rights have been heard and adjudicated upon, and that if süch rights do exist, the parties of the first part are hereafter precluded, by the award, from setting them up. To bring this case within that of Randall v. Randall, (7 East, 81.,) it has been insisted, that an ita quod clause is to be inferred from the act of the legislature, so as to render it a part of the submission, that the commissioners should, at all events, decide upon the rights of the parties of the first part, under the said 12th section. The case referred to does decide that where "there is a reference of two distinct matters of difference, and the arbitrator omits to decide one of such distinct matters, the whole award is vitiated. But it expressly appears in that case, that the arbitrators had not decided upon one of the matters specifically submitted. This objection is untenable. I admit the law to be “ that the award must comprehend every thing submitted, and must not be of parcel only.” Upon this rule Kyd (172) observes (and he is supported by the cases he refers to) that it must be understood with a considerable degree of limitation; for though the words of the submission be more comprehensive than those of the award, yet, if it do not appear that any thing else was in dispute between the parties beside what is comprehended in the award, the award will be good ; as if the submission be of all actions, real and personal, and the award be only of actions personal, it shall be presumed that no actions real were depending between the parties. So, he says, it will be sufficient if the thing awarded necessarily includes the other things mentioned in the submission, and this he illustrates by putting a case. In the first place, it was not submitted absolutely to the commissioners, to decide upon the rights of the parties of the first part, independently of their claim under the patent to Be. — 107 — Bruyn. Their claim under the patent was the primary object of the submission; and the 12th section of the act, without directly asserting that they had any other claim, was inserted for the purpose of giving them a right to urge claims otherwise acquired or existing. They were to be “ at full liberty to avail themselves on the hearing1’ of such other claims ; whether the commissioners took such other claims into consideration or not, was to depend upon the fact, whether they were brought forward or not. Unless they were brought forward, they were not to be decided upon. It does not appear, then, that any thing was in dispute between the parties in regard to any such claims, beside what is comprehended in the award ; and, then, upon one of the distinctions laid down by Kyd, the award is good. But again; the award necessarily includes every such claim, and decides upon it. (1.) It is an award upon the premises, and this involves every thing submitted. (2.) It determines and fixes the location of De Bruyn’s patent. (3.) It decides that all lands, possessed by the parties of the second part, east of the east line of the patent, as ascertained by them, shall remain to them, the parties of the second part, their heirs and assigns, according to their respective possessions for ever. (4.) It decides that the title to part of the lands included within De Bruyn’s patent, as established and located by them, was in persons claiming under said patent. The commissioners then state that they have viewed the lands so by them determined to belong to the parties of the first part, and have caused a survey to be made of the same by David Brooks, by them appointed for that purpose, a map or diagram whereof they annex to their report; and that they had caused a survey, as aforesaid, to be made of the several parcels claimed by every person whose possession fell within such their determination, and then they proceed, (5th.) to award, in some cases, that though the parties of the first part had right, their remedy was lost; and as to such they award in favour of the possessors; and where the right and remedy existed in the parties of the first part, they award and fix the compensation to be paid agreeably to the act. From this statement, it is manifest, that if the parties of the first part brought forward any claims under the right reserved to them in thé 12th section of the act, such claims have necessarily been decided upon; and if no such claims were brought forward, then there is no dispute in relation to them. — 108 — Under the third head, that the award is uncertain, and net final, three exceptions have been taken, which will be considered in their order: 1st. It is contended, that the award is uncertain in' this,, that it awards the land possessed by the parties of the second part, east of the east line of the patent, as located'by the commission,ers to the parties of the second part, according to their respective possessions, for ever. The particular uncertainty is supposed to consist in not defining the extent of their possessions, or the nature or quality of them. I am of opinion, that the award, in this respect, is an excess of power, on the part of the commissioners, and, therefore, void. ■The recital, and the whole provisions of the act, relate to the claim by the parties of the first part, under De Bruyn s patent, and as respects the parties of the second part^to the possessory right of the parties pf the second part, as to what was thus claimed to be within the boundaries of that patent. The first great question to be decided by the commissioners was, as to the boundaries and extent of that patent. The second was, whether any of the possessors had acquired a right to hold their lands, admitting them to be within those boundaries; and the next, admitting the possessions to be included by the patent, and that the remedy of the parties of the first part was not barred, was, what price should be paid for the lands thus circumstanced ? We no where find an intention expressed in the act, to give the commissioners cognizance of any question as to the title of lands without the boundaries of the patent of De Bruyn. If J am right in .this construction, it does not affect the decision of the commissioners, as to the extent of the patent or a§ to the lands included within it, upon the maxim that utile per inutile non viiiatur; and in this point of view, the plaintiff cannot complain of the award for this excess of power, for it does not appear that he is injured or affected by it; and if it did affect him, it being void, it works no injury to tfim. Admitting, however, that the award is not void, on the ground that the commissioners have exceeded their powers, and that the award, in this respect, is to be deemed an exercise of the power adven to the commissioners under the 12th section of the act, I am of the opinion that the award is certain to a common intent, and that is sufficient. In Purdy v. Delavan, (1 Caines’ — 109 — Rep. 314, 315.) Justices Livingston and Kent lay it down that certainty to a common intent, consistent with fair and probable presumption, is all that is required, under the rule that an award must be certain and final. There can be no doubt, when the act and award are duly considered, that the commissioners meant, in awarding the lands east of the east line of De Bruyn’s patent, to the parties of the second part, according to their respective possessions, the actual possessions of those persons; and it was truly observed on the argument, that a deed conveying land as actually possessed by a person, would enure to the benefit of the grantee, as fully as if it described the lands by metes and bounds. (Viner. Ab. Grant. Co. Litt. 4.6.) An actual possession, quasi pedis possessio, is susceptible of clear and definite proof, and no lands can be conveyed by any possible mode of expression, dispensing with the necessity of parol proof to locate it. We cannot require more certainty of description in an award than what the law requires in describing land conveyed by deed; nor are we to intend, for the purpose of avoiding this award, that there is any uncertainty in these possessions. They may, for aught we know, be included within the most definite and permanent enclosures; and, if necessary to support the award, we ought to intend that to be the case. 2. It is insisted, that there is a fatal uncertainty in settling the exterior boundaries of De Bruyn’s patent. The award determines the location of that patent to be as follows : “ Beginning at David’s Hook, upon the east side of the Hudson river, then running down along the east side of said Hudson river, to the kill or creek called France Peterse Clavers saw kill, to the place where the said creek empties into Hudson river ; which general course, from the said David’s Hook to the said saw kill is south nine degrees and thirty minutes west, thence from said saw kill easterly, along the line run by John E. Van Alen, as the south line of said De Bruyn’s patent, so far east as that a line parallel with the general course between the two river stations, to wit, a line north nine degrees, thirty minutes east, will strike the west margin of the small lake to the eastward of Suyer’s lake, called Dickopper lake, passing said west margin of said lake, on a continuation of said course, till you intersect the south line of the Gardinier patent, thence westerly along that line to David’s Hook aforesaid.” It has been argued that the line run by John E. Van Alen, — 110 — and the south line of the Gardinier patent are uncertain. we cannot say; for aught that appears, both their lines may be as well known, and as perfectly certain, as any lines ever run. There may be marked lines at every rod’s distance, or the most durable monuments. It ought to have appeared affirmatively, that there were no such lines, or that they were indefinite and vague. We are bound to notice, too, that the commissioners have viewed the lands, so determined by them to belong to the parties of the first part, and caused a survey to be made of the same, and that they have annexed to their proceedings a map dr diagram thereof. This map being thus referred to, may be taken into consideration as part of the description of the boundaries, and by way of elucidating any thing obscure in it. (Bac. Abr. tit. Grant. H. 2.) If a grant be made of such liberties as such a town enjoys, the grant is good, being capable of being reduced to certainty; for when the act of disposal relates to another thing, that thing, in a manner, becomes part of the disposition, and the standard referred to being certain, the grant, by relation thereto, becomes certain. If so, then the map or diagram renders these two lines perfectly and mathematically certain. The courses, according to the compass, are marked out upon it from the stations on the riyer. But, it is contended that it appears by the award itself that ihe line of the Gardinier patent is uncertain in this, that in describing the land held and possessed by Andrew Spickerman, they begin at a point in the commissioners’ east line, which is described by them as being in the south line of the Gardinier patent\ as claimed by them;'>’> and running thence north nine degrees, thirty minutes east, along their east line fourteen chains ninety-seven links, to a stake in the north line of .the De Bruyn patent, as claimed by them, &c. Thus, it is urged, admitting that there are two lines of the Gardinier patent, and that one of them is south of the line of the Gardinier patent mentioned by the commissioners in fixing the exterior lines of the patent. This objection has more plausibility than any which has been made, but I think it equally destitute of solidity. The commissioners, in establishing the outlines of the De Bruyn patent, as we have already seen, recognise the south line of the Gardinier patent, and make that the north line of De Bruyris. In Spickerman’s case, they recognise one of the stations of the land awarded to him to be “ in the south line of the Gardinier patent. — 111 — as claimed by them thus evidently distinguishing between the real south line of the Gardinier patent, and one to which they laid claim. Without involving any absurdity, there may be these two lines, and if there be, it is plain that the commissioners have considered the most northerly of the two as the true line. It is to be observed, that the authority and power of the commissioners did not extend to the settlement of De Bruyn's patent lines, so as to affect or conclude the rights of other persons holding and claiming under adjoining patents. They had no concern with the clashing claims of any other patentees. If the exterior lines established by the commissioners were so definitely specified, either by the terms they make use of in the award itself, or by reference to the map, as to fix the rights of the parties, then it seems to me, that we must have the most demonstrative proof that they have afterwards set afloat that location, in designating the possessions of the persons which fell within the lines they established. The point itself charges the commissioners with glaring absurdity. The Gardinier patent, as I have already observed, may have had two lines; the one a real and true line, to which all the possessions under it conform?ed; the other to which they had set up a claim, in contradistinction to the true and real line; and they are thus spoken of and referred to by the commissioners. The mention, then, of this claimed line of the Gardinier patent, cannot, and ought not to be understood as in the least affecting the preceding location of the patent. Another difficulty, equally unsolid, has been started. It is urged that the line intended as the north line of De Bruyn’s patent, instead of being designated as the south line of the Gar~ dinier patent, which the commissioners recognise as the northern boundary of the De Bruyn patent, is inscribed on the map “ as the north line of De Bruyn’s patent, as laid down by John E. Van Alen.” Thus, it is contended, creating an uncertainty in the northern boundary of the patent. When the commissioners state, in their award, that they have caused a survey to be made, and have annexed a diagram to their award, they assert, as strongly as possible, that the lines they lay down correspond with the award; and we must intend that Van Aletas une thus marked on the map, is the south line of the Garaira»: pai-mt. It was suggested on the argument, that this '.binament, having been sanctioned by an act of the legislature, the court — 112 — could not rightfully draw in question the decision of the commissioners. I accede to this, in so far as the commissioners have executed the trust confided to them; but had it appeared that they exceeded their powers, or imperfectly executed them, we should have been bound to deny to their decision any valid effect. In deciding the questions raised, we ought to give a fair and liberal interpretation to the award; we can take no uotice of the original merits of the case; these the parties have seen fit to submit to these commissioners, and their determination must be final and conclusive, unless substantial grounds are shown to invalidate it; and we think there are none such. The defendant, therefore, must have judgment on the demurrer. Judgment for the defendant-.