Dutton v. Gillet

5 Conn. 172 | Conn. | 1823

Hosmer, Ch. J.

The matter left to the determination of the arbitrators, in this case, was the right to a certain stream of water; and in this light, it was correctly considered, and decided, by the award. Construing the submission, together, and laying no undue stress upon a particular expression, it is manifestly clear, that damages for an existing cause of action, was not the subject matter referred. The parties were desirous of having a settlement of the right, which should operate not merely retrospectively, but which, should prevent all future controversy between them. Hence, the nature of the action between them was not mentioned, nor who was plaintiff and who defendant, nor what damages were demanded; but the reference to it, was cursory and incidental, because it was not the special object of the submission. The submission begins with a preamble: “ Whereas we, the undersigned, have a cause now subsisting between us, relative to the right of turning the water from a certain spring or rivulet.” it then proceeds, “ now to settle the same, we agree and bind ourselves, &c., to leave the same matter, to the final decision, &c.” To what do the words "the same matter” refer? Undoubtedly, to the next antecedent. “ the right of turning the water.” The arbitrators, who had every advantage of construction, by certain knowledge of the intention of the parties, derived from the management of the cause before them, explicitly define, in their award, the subject matter of the submission. They declare, that they were mutually elected “ to settle a controversy, respecting the right to the use if a certain stream of water;” and having beard the parties they find and award what is the natural course of the water, and what the right of the parties respectively. Whether there had ever been an infringement of this right, by either party, the arbitrators do not decide. From an anxiety to prevent future controversy, and promote peace, they proceeded to define the mode, in which the right should be exercised; but this was beyond the limits of the submission. Having settled the right, they bad done all, which they were authorised to do ; and what shall constitute an observance or violation of it, most be left to the determination of the proper forum, whenever a controversy between the parties shall arise.

Upon an award of the preceding description, no action can he maintained. For an infringement of right, the suit must be brought in the accustomed manner, and the award, so far as it extends, will be conclusive evidence upon the matter in controversy. The settlement of the right, by the agents of the parties, rests on the same basis, as if it had been done by them personally.It furnishes no cause of action, but it supplies decisive evidence. Keen v. Batshore, 1 Esp. Rep. 194. Kingston v. Phelps, Peake's Rep. 228. Daniel v. Pitt, 1 Campb. 366. Curley v. Dean, 4 Conn. Rep. 259.

The charge of the court below, that the proof of the facts beforementioned, entitled the plaintiff to a verdict, was incorrect, and a new trial must be advised.

The other Judges were of the same opinion.

New trial to be granted.