Averill v. Buckingham

Park, J. Complaint is made that the arbitrators considered and estimated the costs of the suit then pending in court between these parties, and made their award accordingly. The claim is that they had no power under the submission to include the costs of the pending suit in their award; that the clause in the submission, “ the costs on said suit in the Superior Court are to be taxed according to law in favor of the successful party/’ means that the Superior Court should determine the costs, independently of the arbitrators. But the Superior Court as a court had no power to tax costs in a suit not determined by the court. If a suit is withdrawn from the docket the court may allow costs to the defendant, if the matter in controversy has not been settled; but how can the court allow costs to the plaintiff in a case that is not either defaulted or tried by the court ? The law determines the costs to be recovered upon the determination of a suit in court, but makes no provision for costs to either party where it has been ended .by the action of the parties out of court, either by themselves directly, or through the instrumentality of arbitrators. It cannot be successfully contended that the submission refers the matter of costs to the judge of the court, for this would constitute two sets of arbitrators to determine independent matters concerning the same controversy, when it is evident from the submission that nothing of the kind was intended by the parties. We think the expression referred to means that the arbitrators shall be governed by the same rules in estimating the amount of costs in the pending suit, as the Superior Court is governed by in taxing costs ; and therefore no complaint can be made of the action of the arbitrators in this respect. It is further claimed that the arbitrators erred in deciding, [364] that previously to the action of the defendant in causing all the waters of the stream to run upon his land, the stream naturally divided, and one moiety thereof ran in a northerly direction, upon the plaintiff’s land, and the other moiety in a southerly direction upon the defendant’s land; and that, inasmuch as the defendant had diverted the moiety that the plaintiff was entitled to, he should restore it to its natural channel. Complaint is made of the order of restoration; and it is said that this action of the arbitrators is contrary' to the principles of law and equity by which they were to be governed. But we think it clear that a court of equity would compel the defendant to restore the stream which he *had wrongfully diverted from the plaintiff’s land. But if this were not so, how can the defendant complain in this suit of this action of the arbitrators ? The plaintiff seeks to recover simply the amount found due by the award. That amount could not have been increased by the arbitrators because they considered that the defendant should restore the stream to its natural channel so that the plaintiff should have no cause of complaint in the future. The award was for injury which had already accrued, together with the costs of the arbitration and of the suit pending in court. Prospective injury formed no part of it, for they directed the defendant to cease inflicting the injury upon the plaintiff. The defendant must defer making this claim till this part of the award is sought to be enforced. It is further claimed that the award is void by reason of the statute in relation to the mode of esecuting submissions and awards where the title to land is involved and decided. It is difficult to see any foundation for this claim. The controversy between the parties was whether the defendant had diverted a stream of water from the plaintiff’s land. The arbitrators found that he had and awarded the damages. How this can be construed as involving the title to land it is difficult to conceive; and we shall pass the objection without further comment. It is further claimed by the defendant that the plaintiff [365] cannot recover in this form of action, because the submission is under seal, and requires an action of covenant to sustain the case. But the action is not brought on the submission; it is brought to recover the amount of the award. The submission was offered in evidence merely to show that the arbitrators had authority from the parties to make the award. Suppose A should give authority to B in writing under seal to purchase a horse for him and B should make the purchase. In a suit brought for the price of the horse must the action be covenant because the authority of the agent was in writing under seal ? We think not; neither do we think it was necessary in this case. If the plaintiff was seeking to recover the penalty mentioned in the submission, on the ground that the defendant had revoked the submission, we should have a different question presented from the one we now have. We think this claim untenable; and on the whole we are satisfied that there is no ground for a new trial. In this opinion the other judges concurred.