Bartolett v. Dixon

The opinion of the court was delivered, March 17th 1873, by

Mercur, J.

This was an. action on the cas.e for raising the defendant’s dam too high, and setting back the water upon plaintiff’s land.

The parties agreed to refer all matters in variance between them to three persons named, the award of any two of them to be final.

The report signed by two of the arbitrators shows that all three of them met the parties and their counsel upon the 28th October 1871, went upon the ground, examined the premises, heard the evidence and allegations of the parties, and then adjourned to meet on the 16th November 1871. On said day two of the arbitrators met, and in consequence of the waters being much swollen by recent rains, they “postponed the further consideration of the case until the spring of 1872.” May 25th 1872, said two referees met, the other arbitrator “ not being present in consequence of being severely sick.” The two proceeded again to examine the premises, causing the water to be drawn down so as to expose the remains of an alleged fish-dam, and then adjourned to the 28th May 1872. The said two arbitrators met in pursuance of their adjournment upon the 28th of May, “and after fully considering all the facts and circumstances in connection with the case,” did award and determine, and completed and signed the report.

To this report the plaintiff filed three exceptions. The first and second alleged matters of fact not shown by the report. The third was to the action and award of the two referees in the absence of the third. The court overruled them and confirmed the report. To this decision of the court the plaintiff took no exception at the time; but sued out this writ of error. Afterwards, without the request of either party, the court filed an opinion. Several facts are therein averred that do not otherwise appear. This opinion so filed is no part of the record, and the facts therein alleged cannot be considered: Lancaster v. DeNormandie, 1 Whart. 49 ; Moyer v. Germantown R. R. Co., 3 W. & S. 91; Meese et al. v. Levis, et al., 1 Harris 384.

The validity of this award must be determined by the record alone. An authority given to three cannot be executed by two: Russell v. Gray, 6 S. & R. 145; Potter v. Sterrett, 12 Harris 412. All the arbitrators must hear the case and deliberate: Backus’s Appeal, 8 P. F. Smith 186. It was said in Robinson v. Bickley, 6 Casey 384, and again in Painter v. Kistler, 9 P. F. Smith 331, that it is not necessary it should appear on the face of the award to have been so done; but if a majority have power to make an award and do make one the presumption is that the hearing, consultation and execution were regular, and that the minority have refused to join in the award. This, however, is a presumption only of a fact. Like other presumptions of fact it may be overcome by competent and sufiicient evidence. In this case it is overthrown by the record evidence. The award distinctly • shows that the third arbitrator was present at the first meeting only. At the three subsequent meetings two only of the arbitrators met. The question then is, did the third arbitratpr so far participate in the hearing and deliberation, as to make the award of the two valid ?

Much of the evidence was to be acquired by an examination of the premises. A very important part of the award was to establish permanent marks on the ground. The report shows that the water was drawn down; the remains of the old dam were examined ; and the iron bolt was driven or adopted by the two arbitrators only. The third arbitrator was not present. He was not consulted in regard to them. He had no knowledge that they were done. The two only consulted together. They alone considered and deliberated. They alone passed upon the question of damages down to the date of the award. They alone decided the case, seven months after they had held any conversation with the other arbitrator. The facts do not present such a joint consideration and deliberation as the law requires. The learned judge erred in entering judgment upon the award.

Judgment reversed, and the award of the arbitrators is set aside.