Gordon v. Saxonville Mills , 96 Mass. 219 ( 1867 )

Chapman, J.

Awards were formerly construed with great strictness, but are now construed liberally, in order that the intent of the arbitrators may be effected. Kyd on Awards, 229-230. Hawkins v. Colclough, 1 Burr. 277. This case furnishes a good illustration of these two methods of construing an award. If we adopt the liberal rule, we shall look into the subject of controversy, the agreement of reference, and the circumstances of the case. It appears by such examination that, at the time of making the award, namely, September 24th 1853, the New England Worsted Company had for many years maintained a dam for working their mills, by which they had flowed the complainant’s land. On the first of November in each year they had placed flashboards on the dam, which were sixteen inches in height, and kept them there till the first of the ensuing April, when they were removed, and were left off until the next November. The use of flashboards as part of a dam is quite common, and where, by the verdict of a jury, under Gen. Sts. c. 149, § 3, a dam is to be maintained at different heights in difieren* seasons of the year, as this was, they are a very convenient, if not necessary, part of it. The complainant had filed a complaint under the mill act then existing to recover damages for the flowing of her land by the dam as it was then maintained, including the use of the flashboards which the Worsted Company had been accustomed to make. The whole matter was referred by rule of court. The arbitrators awarded to the complainant the sum of two dollars for the amount of damage sustained by her within one year next preceding the date of the complaint. This part of the award must of course have been founded on the use of the dam, including the flashboards, for a part of the year. They also awarded to the complainant two dollars annually for the damage that should thereafter be occasioned by the use of the dam,' so long as it should be used in conformity with the award, or sixty dollars as gross damages. If the complainant should elect to take the gross damages, it must have been manifest to the arbitrators that the interest on that sum would be much more than two dollars annually. That part of the award which occasions the present controversy is as follows : “ And we further award and determine that it is necessary for the convenient and advantageous operation and working of the worsted mills mentioned in the petition in this case that the said New England Worsted Company should have and exercise the right and privilege of beeping and maintaining the said dam of the said company in the state and condition in which said dam now is.” Having reference to the subject of controversy, to the fact that the complainant did not ask for any restriction of the customary use of the dam, to the sums awarded, and to the circumstances of the case, a liberal construction of the award leads us to believe that it referred to the state and condition of the dam throughout the year, including the use of the flashboards for a part of the year, and that the word “ now ” included not merely the day, but the year in which it was made.

But a literal construction of the word “ now ” refers to the day of making the award exclusively. On that day the flash-boards were not on the dam. By the same construction, if the waste-gates had happened to be kept open, even for a temporary purpose, during that day, the award would require them to be kept open during the year; or if the award had been made after the first of November, while the flashboards were on, a similar construction would have given the respondents a right to keep them on throughout the year.' We cannot regard such a construction as reasonable or true.

The complainant accepted the gross damages, and they were paid, and the flashboards have been kept up as before, during some thirteen years without complaint. We think this practical construction which the parties gave to the award was right. The respondents have lately begun to use the flashboards throughout the year, admitting that the award gives them no right to do so, but claiming the right under the statute by paying the damages therein prescribed. For this additional use of the flashboards between the first of April and the first of November, the complainant is entitled to maintain her complaint, and to an order for a jury.