Wood v. Willis

Ames, J. The instrument set forth in the declaration was properly described as a bond. Hubbell v. Bissell, 2 Allen, 196. Each party bound himself to the other in a penal sum; the condition of the obligation being that it should become void, as to the defendant, if he should make such payments as the award of the referees should determine; and as to the plaintiff, if he should accept such payments as his compensation for the flowage upon his lands. The bond and its conditions are set forth in full in the declaration, and the demurrer does not point out any particulars in which the conditions were not properly averred to have been performed. The award, as alleged in the declaration, was in conformity to the terms of the submission, and had the effect to give to the defendant the right to flow the plaintiff’s lands upon the terms prescribed by the referees. The parties in terms authorized the referees to decide as to the amount of damages for “ the three last years,” and also the amount of yearly damage Vor the future, without limiting either to the summer season; and did not require them to define the extent of the right of flowing. [458] The declaration sets forth with sufficient certainty that the award was made, and what were its terms; that the defendant has exercised the right continuously since the date of the award; and that he has not made the payments which it required him to make. The demurrer was therefore rightly overruled. By the terms of the bond, in which the plaintiff is described as the owner of the land, the defendant admits the plaintiff’s title, and is estopped to controvert it. The plaintiff was lawfully occupying the whole of the premises, and was the owner in fee of four undivided fifth parts of them. The fact that he did not then own the remaining fifth part in fee would not affect the bond or the award. The statute of limitations is not a bar to the action. Austin v. Moore, 7 Met. 116. The testimony of Crane, one of the referees, that they estimated damages for flowing in summer only, was admitted without objection; and the question put to him by the defendant, as to the reasons why it was not so specified in the award, does not appear by the bill of exceptions to have been material, either by way of impeaching the credit of the witness, or otherwise. Exceptions overruledÍ.