Meloy v. Dougherty , 16 Wis. 269 ( 1862 )

By the Court,

Paine, J.

This action is brought to set aside an award. The parties owning lands in common, submitted it to arbitrators to make partition. An award was made dividing the lands, and subsequently a provision was added and made part of the award, giving each party the right to enter upon the lands awarded to the other, “ without let or hinderance; to make, construct, cut and use such ditches, levels, or water races, through the lands of the other, as the former of said parties may deem necessary and proper for taking and draining the water off of his land and mines thereon.” The plaintiff contends that the power to make this provision was not given to the arbitrators, and that the award is therefore void. If this is so, it is a good reason why this suit should not be sustained. For the invalidity of the award, would then appear on the face of the papers, and could be shown in defense whenever any rights were attempted to be enforced under it. Hence, there is no reason for equitable interference. The same principles are applicable, that govern equitable actions to| remove a cloud from the title. If the invalidity of that which is alleged as a cloud, appears on the face of the record by which it is shown to exist, equity will not interfere. It would be idle to set in motion the machinery of the law, to nullify that which appears on its own face to be null.

For this reason, the complaint was properly dismissed. The judgment is affirmed, with costs.