Tennessee Coal, Iron & Ry. Co. v. Roussell

McCLELLAN, J. The employment of the expression, “Whereas, the said parties are desrions of settling said controversy by arbitration in accordance with the statutes of Alabama,” clearly evinces the common intent, in a material respect, to have been to make the statutory provision for a statutory (as distinguished from common-law) arbitration an integral part of their alleged agreement to arbitrate in the premises. We are therefore required to treat the pleas setting up the asserted' arbitration and award as if the requirements of the statutes in this regard were written, in extenso, into the agreement; and hence, if conditions of substance were not complied with, essential to be averred in the pleas to render them immune from attack, the award was abortive, whether as ground of action thereon or defense, as is here attempted. Such an appropriation of the statutes in question as elements of the agreement between the parties necessarily operated to adopt them as and impressed with the construction given them by the courts of the state. Among other stipulations in the system thus incorporated into the agreement for submission is that providing for the delivery of a copy of the award to each of the parties. — Civ. Code 1896, § 511. This provision was said by this court, in Crook v. Chambers, 40 Ala. 239, to be merely directory, and hence not of substance. The subsequent and repeated readoption of this statute affected to enact the construction thus given by [446] the court as a part of the statute itself. Hence the demurrer assailing the validity of the award on this ground was not well taken. Anderson v. Miller, 108 Ala. 171, 19 South. 302, was an expression of this court invited by. an agreement in which the parties provided for the delivery of a copy of the award — a very different matter, as is evident. That the arbitrators must be sworn before making their award is expressly required by Civ. Code 1896, § 515, and this provision has been, in construing this stat-ute, pronounced to be of substance. — Tuskaloosa Bridge Co. v. Jemison, 33 Ala. 476; Crook v. Chambers, supra. The readoption of this section affected the same result as the reenactment of section 511. It has been ruled,, however, that the necessity for an oath may be waived, though in these pleas no waiver is urged. Hence the third plea, omitting to aver that the requirement as to the oath was complied with, was fatally defective, and the- demurrer thereto on that ground was well sustained. The other contain the averments that the arbitrators were sworn according to the laws, and that the arbitration was conducted according to the statutes and laws, of Alabama. Doubtless this latter averment is a conclusion of the pleader; but the objection is not taken by the demurrer. At first we were inclined to think that the pleader should be held to have written to a distinction between statute law and law, and thafi the allegation of compliance with the laws of the state could be interpreted only as not necessarily including statutory law. This view appeared to be sustained, among others, by Smith v. United States, Fed. Cas. No. 13122, and Com. v. Morse, 2 Mass. 128, and Jones v. Vazandt, Fed. Sas. No. 7,502. But on further consideration we think the rule stated before has application, in the absence of accompanying qualification, to penal statutes only. In [447] other words, that the term “law,” if unqualified, except in cases involving penal matters, embraces legislative enactments as well as the common law. This conclusion finds a well considered authority in Chief Justice Shaw’s opinion in Reed v. North-field, 13 Pick. (Mass.) 94, 23 Am. Dec. 662. We therefore hold that pleas 4 and 5 are not objectionable in omitting to aver that the arbitrators were sworn in accordance with the statute. Section 515. Of course, to support, in proof, these pleas in this respect, it is essential to adduce testimony tending to show that the arbitrators were sworn as required by the statute. The agreement for submission, stating the matters submitted, is so clearly sufficient and definite as to require no treatment here. Whatever may be said in refutation of the legality of an agreement for the continuance of a private nuisance, counsel have not brought to our attention, nor have' we been able to find, any authority denying the right of an owner of real estate to, by agreement, ascertain and finally conclude himself against any further claim for damages to his property resulting from an indefinitely continuing private nuisance. Unless some element intervenes, regarded in law as illegal, there would seem to be no reason why a property owner may not, for a valuable consideration, wholly foreclose himself against assertion of any right to claim damages to his property by reason of a continuance of the agency that produces the injury. This court is committed to the doctrine of prescription as applicable to a private nuisance. — Roundtree v. Brantley, 34 Ala. 544, 73 Am. Dec. 470; Wright v. Moore, 38 Ala. 593, 82 Am. Dec. 731; Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453. And since that doctrine is grounded upon the presumption of acquiescence, for the requisite period, of the owner in the assertion by the prescriptioner of a hostile and adverse right or user, no good reason [448] appears to deny the legal efficacy of a contractually, upon consideration, expressed intention to embrace the practice that has and probably will in future damnify' the owner’s property. We therefore hold that the agreement for submission to arbitration was not invalid because it included all future damage possible of infliction by the continuance of the practice described. The award, which, with the agreement, will be reported, is not subject to the criticism that it is uncertain in its finding. The mention in it of the whole damage may be entirely disregarded, and there still remains a clear finding of the damages done or to be anticipated of infliction by the appellant; or, if it be not disregarded, there is no difficulty whatever in arriving at the conclusion, within the limits of the submission, reached by the arbitrators. These pleas aver the presence and participation of the plaintiff in the arbitration; hence he can take nothing by the failure, if so, of notice to him of the time or place of hearing. For the error in sustaining the demurrers to pleas 4 and 5, the judgment is reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J., and Dowdell and Anderson, JJ., concur.