Snell v. . Chatham , 150 N.C. 729 ( 1909 )

Clark, C. J.,

after stating the case: There was no exception to the award of the arbitrators. After his Honor had entered judgment in conformity therewith, the defendant excepted, assigning four grounds:

“1. That upon the award the court should not have signed judgment enjoining the erection of the dam.

“2. That the arbitrators went beyond the scope of their powers in recommending the drainage of the pond.

“3. That the plaintiffs have no right to any relief not set up in the complaint.

“4. That the court had no power to require the defendant to drain an area of land which was in its natural condition.”

The first three exceptions are based upon the proposition that the complaint sets out a cause of action for injury from the maintenance of the pond and sought only to enjoin the rebuilding of the dam. But the parties, by their consent order, voluntarily enlarged the scope of the controversy and unequivocally submitted to the arbitrators, not only “to settle and decide upon the matters in controversy in this action” (which means the controversy upon the pleadings), but added “including such plan or scheme as they shall deem and find proper to safeguard the public health in the premises; and all parties to this action agree to be bound by tbe findings and award of said arbitrators or any two of tbem, their findings or award to be made the judgment of the court in this action.”

This was not an inadvertent or hasty agreement. His Honor sets out in his judgment the care and deliberation with which the consent order was made and the adjournment taken, that-the parties might have a full understanding and that the able and experienced counsel might have the assent of their clients and put their agreement in writing, which was done. That the consent order embraced an agreement to settle, not merely the question of the re-erection of the dam, but was to include also "such plan or scheme as they shall deem and find proper to safeguard the public health in-the premises” appears by the explicit language of the agreement. The arbitrators all three so understood and acted, for while two recommended drainage, the other recommended a “free-flowing lake or pond” as the better scheme or plan.

There is nothing to impeach the award, ahd by the previous consent of the parties it was properly entered as the judgment of the court.

Nor do we find any ground for the fourth exception, nor any difficulty in enforcing the order of the court as to drainage. If the defendant had made an agreement with the plaintiffs that, upon certain consideration paid or upon the ascertainment of certain facts he would drain his pond, this would be enforcible by a decree for specific performance. Here the defendant agreed to execute such plan or scheme as the majority of the arbitrators should award as “proper to safeguard the jiublic health in the premises.” One arbitrator thought a “free-flowing lake or pond” the plan. This would have suited the defendant, as this would have enabled him to put baek and keep up his dam without fear of damages, and if the majority had so awarded, the plaintiffs must have acquiesced in the infliction of mosquitoes and malaria (if the lake did not remove them) and the loss of all claim for damages. The majority of the arbitrators, however, said “drainage” was the remedy, and the defendant should know how to be “a good loser,” for, after all, the majority of an impartial board of arbitrators are more likely to be right than either party to the litigation.

It is an old saying tbat “fragments of all tbe sciences are taken up in ashes of the law.” It is not long since that our progressive brethren of the medical profession have discovered that one kind of mosquito (anopheles) causes malaria; that another (stegomyia) carries yelhjw fever, and another still spreads the Asiatic cholera; that house flies spread typhoid fever, that fleas on rats communicate the dreaded Bubonic plague, and lesser germs, as 'bacteria, and bacilli, are the agents of other diseases. For thus do “the weak things of the world confound the -things which are mighty.” 1 Cor., 27. Acting on these discoveries, under authority of law the stegomyia and yellow fever have 'been extirpated in Cuba and the Bubonic plague was stayed in San Francisco, because mosquitoes and rats were systematically destroyed by the officers of the law. There 'is no reason that the plaintiff’s home shall not be freed of malaria by authority of a judgment based upon medical advice, especially as the parties agreed that such remedy (whatever the majority of the medical arbitrators should find it to be) should be entered as the judgment of the court.

Affirmed.