Weeks v. Trask , 2 L.R.A. 532 ( 1888 )

Virgin, J.

Assumpsit to recover $300 as liquidated damages for the alleged breach of a written agreement “to abide by and perform an award” by which the arbitrators found and established the division line between the adjoining tracts of lands of the parties.

It is well settled that a published award, made under a written submission giving authority “to find and establish the boundary-line between the adjoining lands of different proprietors, is conclusive on the parties, and they are estopped thereby to dispute it when thus established.” Tyler v. Dyer, 13 Maine, 41; Sweeny v. Miller, 34 Maine, 388; Buck v. Spofford, 35 Maine, 526; Goodridge v. Dustin, 5 Met. 363; Thayer v. Bacon, 3 Allen, 163; Searle v. Abbe, 13 Gray, 409; Shaw v. Hatch, 6 N. H. 162; Russell v. Allard, 18 N. H. 222; Orr v. Hadley, 36 N. H. 575; Marshall v. Reed, 48 N. H. 36.

Moreover, a controversy as to the location of the division line-between adjoining lands necessarily involves the title of the strip of land lying between the two lines claimed by the respective-parties. And though the award does not attempt in terms to-transfer from one party to the other the intervening strip, nevertheless, without making any newline, it does “find and establish”' —that is, ascertain and confirm what was before doubtful — the pre-existing line, on the respective sides of which the parties had held the title ever since they became the proprietors of the adjoining lots. Searle v. Abbe, supra.

Furthermore, the particular locality of the line upon the face of the earth having been thus ascertained and fixed, transit in rem arbitratam. Duren v. Getchell, 55 Maine, 241, 249. Thenceforth, relying upon the finality of that line through the estoppel of the parties to deny it and its necessary consequences, a writ of entry might be maintained by either party against the other who should. disseize the demandant of his land bordering on it (Goodridge v. Dustin, supra); or trespass would lie against whichever of the parties committed acts of trespass on the other side of the line. Sellick v. Adams, supra; Shaw v. Hatch, supra.

Assuming then, that the declaration sufficiently alleges that the defendant’s acts complained of were committed upon the land the title to which was in controversy, until the award virtually determined it to be in the plaintiff, the demurrer directly presents the question, — whether the defendant’s going upon the land after the publication of the award, and then and there, in disregard of the award, erecting the fence and claiming the land as his own, constitute a breach of Iris stipulation in the submission “to abide by and perform the award,” for which assumpsit will lie; or whether the plaintiff must resort to his action of tort for remedy.

This precise question has been decided in New Hampshire, 'where it was held, that entering upon the disputed land, removing the stone monuments erected by the arbitrators to designate .the division line found and established by their award, and denying that to be the true line, did not constitute a breach of the .arbitration bond conditioned “to abide by and perform the .award.” Richardson, C. J., said, the words “abide by” did not mean to acquiesce in; but simply to await the award without revoking the submission, adding “the award is conclusive between the parties and the defendant may be liable in trespass for what he has done.” Shaw v. Hatch, supra. A like view was adopted in Marshall v. Reed, supra.

Doubtless a revocation of the authority of the arbitrators before the award is made is a breach of such a stipulation. King v. Joseph, 5 Taunt. 452; Brown v. Leavitt, 26 Maine, 251. So is putting it beyond the power of the arbitrators to make an award, —as the marriage of the female party. Charnley v. Winstanly, 5 East, 266. Or, preventing one of the arbitrators from taking part in an award as to costs which were a part of subject referred. Quimby v. Melvin, 35 N. H. 198. So is refusing to pay money in "accordance with the award. Thompson v. Mitchell, 35 Maine, 281; Plummer v. Morrill, 48 Maine, 184. Also refusing to do any act ■ other than the payment of money, required by the award, such as transferring a piece of a vessel; and when the submission is not under seal, assumpsit will lie. Gerry v. Eppes, 62 Maine, 49, 51, 52.

To “abide the order of the court” in a bastardy proceeding, said Shaw, C. J., means “to perform,” “to execute,” “to conform to.” Hodge v. Hodgdon, 8 Cush. 294, 297.

A docket entry under an action at law “to abide the decision” in a. certain equity suit, has been held to mean, not that the action at law should be dependent on the final determination of the suit in equity, but that so much of the issue as was common to both should be decided in the former the same as in the latter. Hodges v. Pingree, 108 Mass. 585.

The debtor’s stipulation in his bail bond “to abide, do and perform” the judgment “means,” said Peters, J., “to submit to, to stand to or to abide. The words are an useless iteration, employed to add force and expression to the idea conveyed by the words to abide.” Hewing v. Currier, 62 Maine, 236, 239.

While these illustrations show that these words take some shade of meaning from the subject matter, with which they are connected, our opinion is that, in cases of this sort they mean in substance that the parties will not in anywise revoke or prevent the making and publication of the award ; that when made and published it shall be final; and that they will perform any act required by the award, which is within the scope of the authority conferred on the arbitrators by the submission.

The award in tliis case having been made in pursuance of the submission, leaving nothing to be done by either party, the submission and the award, like a deed of partition, have performed their office. And whatever controversy the parties may have subsequently had in relation to the premises, the ordinary remedies at law afford to each ample redress.

Exceptions sustained,

Peters, C. J., Walton, Daneorth, Emery and Haskell, JJ., concurred.