Parker v. Clark , 104 Mass. 431 ( 1870 )

Chapman, C. J.

It appears that Clark brought an action of tort, in the superior court, against Parker, for pulling down a brick wall which Clark had erected near the westerly end of Gloucester Place in Boston. While the suit was pending, the parties made an agreement under seal. It recites that differences had arisen between them “ as to the ownership and use ” of the place, and Parker claimed that he had “ an interest in the fee of said place,'’ and “ a right to use the same not merely as a way in connection with his estate on said place, recently purchased by him of David A. Neal,” “ but also to use the same in going to and from Harrison Avenue and his estate on Washington Street ” which bounds in part on said place, for all purposes, to be used in common with other tenants in common of the fee of said place, “ which said claims the said Clark denies.” It further recites that “ there is a difference between said parties as to the boundary line between Gloucester Place and said Parker’s said estate on Washington Street; ” and also the controversy and suit respecting the pulling down of the brick wall. And it concludes that the parties are desirous of having “ all questions between them, touching their respective rights in and to the use of the place, and as to the line ” settled; and agrees to submit “ all said questions, including said suit,” to an arbitrator ; and the parties consent to abide by and perform his award. The award made under this agreement fixes the westerly line of Gloucester Place; finds that Parker has no right of way in the place; that Clark has a right of way there; and that the removal of the wall by Parker was tortious; and assesses damages therefor under a rule of court which had been made in the pending action; and the arbitrator, as referee under the rule, makes an additional award of the same damages.

It is agreed that the plaintiff offered evidence before the arbitrator, tending, as he contended, to prove his title to the fee of two undivided third parts of Gloucester Place; that his claim was denied; and that this matter was made the subject of argument. But the arbitrator has omitted that subject in his award; by accident or oversight, as it is said. We cannot interpret the finding that “the plaintiff has no right of way in .Gloucester Place ” as equivalent to a finding that he has no interest in the fee. The two subjects are distinctly stated in the recitals of the agreement, and appear to have been separately presented at the hearing, and are not in their nature identical, though the ownership of an interest in the fee may be a ground for claiming a right of way. But it is not so of necessity. Making all presumptions in favor of the award, we cannot think that by a fair construction of it we can regard the question as determined by the exercise of the judgment of the arbitrator, applied definitely to that question. That an award which fails to decide all the material questions submitted is invalid, is a principle well established. See cases cited for the plaintiff.

The award of damages, under the rule of court, is so dependent upon the other award, that both must fall together.

It is not necessary to decide whether the court has jurisdiction in equity to declare the award void; for, though the plaintiff may have a remedy at law, (see Bean v. Farnam, 6 Pick. 269, 274,) yet the question of jurisdiction is waived. Nor need we decide whether the court from which the rule of reference issued has power to furnish a remedy to the plaintiff by setting aside the award for damages; for, the whole matter being before us in equity, the remedy may be made complete.

Both awards may be declared void in this suit; and each party will then be at liberty to enforce his rights as he may be advised. Decree accordingly.