Rottman v. Toft

The following opinion was filed June 22, 1925: Owen, J. It is appellants’ contention that the rights of the parties are fixed by the Braun survey made pursuant to the agreement set forth in the statement of facts. It is their contention that this agreement was the submission to arbitration of a controversy concerning the boundary line, and that, pursuant to well-established principles governing arbitrations, they cannot at this time, in view of the evidence in this case, impeach the findings of the arbitrator. Sec. 3544, Stats., provides that “Except as otherwise prescribed in this section, two or more persons may submit to the arbitration of one or more arbitrators any controversy existing between them at the time of the submission, which [564] may be the subject of an action.” The section prescribes certain controversies which may not be submitted to arbitration, among which is mentioned “a claim to an estate in real property, in fee or for life.” But the statute further expressly provides that this shall “not prevent the submission ... of a controversy respecting the boundaries of lands or the admeasurement of dower.” Respondents strenuously claim that there was no controversy existing between the parties constituting the subject of arbitration, and, if there was, it was a controversy concerning the title to real property, and one which could not be submitted to arbitration under the express provisions, of sec. 3544. The agreement itself expressly states that it is entered into “For the purpose of settling the ownership of a tract of land and the timber thereon in the town of Bailey’s Harbor, Door county, Wisconsin, in dispute,” claimed by one party to be in section 16.and by the other to be in section 15. That states exactly what the dispute was, and that exact controversy is presented in this action. In no sense does it relate to the title to land or an estate in real property. Each party to that controversy then owned, as the parties to this action now own, record title to definite descriptions of property. The disagreement concerns the boundary lines of the'property to which they have record title. This constitutes a boundary-line controversy (if there can be one) as distinguished from a controversy relating to title to lands or estates in real property. Fehrman v. Bissell L. Co. 188 Wis. 82, 204 N. W. 582 (decided herewith) ; Goodridge v. Dustin, 5 Met. (46 Mass.) 363. There is no doubt that a controversy existed and that it was a controversy which might properly be submitted to arbitration. Pursuant to the agreement Braun made a plat or map of his survey. Said map together with Braun’s field-notes were attached to the agreement and filed in the office of the register of deeds. A certified copy of the agree [565] ment, plat, and field-notes was received in- evidence. We do not understand that respondents contend that the certified copy of the agreement (which was received by stipulation instead of the original record) was not properly received in evidence, but they do contend that the survey and field-notes were not properly received in evidence. Whether this be true or not, Braun’s location of the southeast corner as well as the boundary lines of the southeast quarter of the southeast quarter was abundantly established by the testimony of witnesses who either saw Braun locate the southeast corner or had personal knowledge' of the location thereof, so that for the purpose of locating Braun’s boundary lines neither his field-notes nor map are essential to be considered. We have, then, a controversy which the statute makes the subject of arbitration, we have a submission of that controversy the form- or sufficiency of which is not challenged, and we have abundant proof of the conclusions reached by the arbitrator pursuant to the articles of submission. But it is further contended by the respondents that Braun did not make a correct survey, and much evidence upon this point was introduced. But it is the settled law that an “award of arbitrators is not to be set aside for mere errors of judgment upon questions of fact or law submitted, but it is subject to impeachment for fraud or misconduct amounting to fraud, or upon clear evidence of mistake when such mistake is not .simply a wrong conclusion upon the facts or law submitted, but an unconscious failure to know or apprehend some material fact or right in the light of which their judgment should be exercised.” Donaldson v. Buhlman, 134 Wis. 117, 113 N. W. 638, 114 N. W. 431; Keachie v. Starkweather D. Dist. 168 Wis. 298, 170 N. W. 236. We may pause to remark that unless the Braun plat and field-notes are properly in evidence, there is no evidence to show that Braun did not make a survey in accordance [566] with the agreement. But considering them in evidence, it is perfectly apparent that the mistake made by Braun, if he made a mistake, was the result of the exercise of deliberate and honest judgment, knowing all the facts and circumstances, and was not an unconscious, mistake, which is the only kind of a mistake which may be relied upon for the impeachment of an award of arbitrators. In running the south line of section 16 the surveyor, Braun, found a discrepancy between the location of a meander post and the government field-notes. In other words, the government field-notes indicated that the meander post was set out in the lake, which was an apparent error according to the testimony of every surveyor who testified in the case. He simply met a surveying problem which he there solved and decided deliberately, and his mistake, if any, was a deliberate mistake. It was one resulting from the exercise of judgment with reference to known facts. The establishment o'f the corner as well as the boundaries by Braun was in effect the award of an arbitrator and is entitled to the same weight. It cannot be impeached for a mistake resulting from the exercise of honest judgment. It was binding upon the parties to the award, and binding upon their heirs and assigns, both as a matter of law and by force of the original agreement. More than this, the result of Braun’s survey met with the acquiescence of all the parties to the agreement, and especially plaintiffs’ predecessor in title. It is contended by the respondents that there is no evidence of acquiescence,' but we can conceive of no plainer act of acquiescence than that of Mrs. Rottman when she accepted a reconveyance of the premises from Morrow and Donovan in accordance with the terms of the agreement of submission. Even in the absence of such affirmative act indicating acquiescence, the lapse of nearly twenty years, during which time no steps were taken to challenge the award, especially in view [567] of the fact that Braun has died in the meantime and defendants are deprived of the benefit of his testimony, plainly amounts to acquiescence as a matter of law. Our conclusion is that plaintiffs are concluded by the submission and the award, and that whether Braun correctly located the boundaries of the premises in question cannot now be inquired into. It results that the judgment appealed from must be reversed, and the cause remanded with instructions to enter judgment dismissing the plaintiffs’ complaint. By the Court. — So ordered. A motion for a rehearing was denied, with $25 costs, on October 20, 1925.