Giddings v. Hadaway , 28 Vt. 342 ( 1856 )

The opinion of the court was delivered by

Redeield, Ch. J.

The evidence offered to show that the monuments referred to in the award, in defining the boundaries between the parties, did not exist, at the time of the award, was, no doubt, competent for the purpose of showing the uncertainty of the instrument ; and the fact offered to be shown, which, for the purpose of this trial, is to be regarded as proved, would, no doubt, effectually defeat this portion of the award. For it is only on the supposition that the monuments referred to exist, and may be found, that such award can ever be regarded as sufficiently certain to be binding upon the parties. The evidence offered, therefore, was addressed to a fatal point, in regard to this portion of the award.

The only question, then, is, whether this portion of the award is susceptible of entire separation from the other portion qf the award. If so, the portion of the award sued upon may be held valid. The submission is of a pending suit for trespass upon lands, and cutting trees. We are justified, no doubt, in regarding it as the very land where the boundary was in dispute. But still the suit for the damages, although upon the land in dispute, had no necessary connection with settling the disputed boundary. The arbitrators must, indeed, decide where the line is, in order to deter7 mine the right of the plaintiff to move in the action. And there is nothing to raise any doubt, that the arbitrators did decide, or might have decided the line correctly. The defect in the award, in regard to the line is, not that the arbitrators may not have decided where the line was between the parties, and that correctly, but the defect, if any, upon the proof offered, is, that they have not correctly defined the boundary. There is no want of finality shown in the decision, but a want of certainty in the award,

The award upon the pending action, and giving damages and costs, has no more connection with the award, in regard to the boundary, than an action of trespass for cutting the trees, and an action of ejectment to recover the disputed land; or than separate submissions of the two subjects to the same arbitrators, or to different arbitrators.

The arbitrators, for anything which appears, or can fairly be inferred from the award upon the boundary, may have, and probably did determine the action understandingly, and made no stumble in that portion of the submission, but in defining that portion of the award which refers to the boundary, failed to point out intelligible monuments. The damages and costs had no connection with the boundary. The only thing which could, with any plausibility, be said to be connected with both parts of the award, is the fees of the arbitrators. But in regard to these, as the arbitrators must have determined where the line was, in order to decide the suit referred, and nothing more was to be done to decide the boundaries between the parties, than to define the line, by proper description of existing monuments, it can scarcely be supposed their fees were increased by that portion of the award, which is defective. This is a point not raised in the argument, and not sufficient to create any difficulty in separating the two parts' of the award, as we think. Judgment affirmed.