62 W. Va. 628 | W. Va. | 1907
This was a suit in chancery filed by the Eureka Pipe Line Company in the circuit court of Putnam county against It. G. Simms and others for the purpose of setting aside an award made by arbitrators under an agreement in writing made between the plaintiff and defendants in a proceeding in condemnation begun in said court for the taking of a strip of land fifteen feet in width through the three farms of the defendants which lie contiguous to each other, and for the purpose also of enjoining and inhibiting the defendants from taking proceedings at law to have such award entered up as the judgment of the court, which injunction was granted. On the 28th day of November, 1902, notice of application for appointment of commissioners in condemnation proceedings was given and on the same day the parties entered into a written agreement to arbitrate the matters in difference between them and providing how the arbitrators should be chosen, and that the award made by the arbitrators should be final and conclusive on the parties to the agreement without the right of either party to appeal, the costs to be borne equalljr by the parties to the agreement; that is, one-half to the plaintiff and one-half to the defendants and that the award should be entered of record as the judgment of the court. It was further agreed that the arbitrators in considering the matters submitted to them should award the damages for the rights of way through the premises, “it being distinctly understood that no title to any part of the land of the said parties of the second part shall pass by reason of said proceedings or award, to the party of the first part, but only the rights of way, with ingress and egress to and from the same; and that the ditch which the party of the first part is to dig through the lands of the parties of the second part shall not be over three (3) feet wide, and to be properly filled up when the pipe has been laid; and that there be no pumping stations on said lands. ” And it was further provided and agreed that the Pipe Line Company or its successors or assignees might at any time lay a
The plaintiff exhibited with its bill copies of the application for the. condemnation and notice thereof, the surveys and maps, together with a copy.of the agreement and of the award. The bill alleges that the award should be set aside for the reason that it is uncertain; that it was obtained by undue means; that the arbitrators made a mistake; that they were guilty of misbehavior, and because of the •misbehavior of counsel for defendants; and because the same is grossly excessive and exorbitant; that the defendants procured the arbitrators to sit at Poca where there was local prejudice against plaintiff of which plaintiff had no knowledge and defendants had no notice; that on discovering the prejudice plaintiff requested the arbitrators to go to the Court Plouse of Putnam county, some seven miles away, which was the home of all the arbitrators* so as to be free from the prejudice, but defendants refused to go and that the misbehavior of the arbitrators consisted in their remaining at the village of Poca and completing their proceedings there when the prejudice was open and xialpable; that while, there was no moral wrong, yet it was unjust, unfair and improper for the arbitrators to continue the hearing at that place when they knew that the prejudice existed and that the defendants were trying to avail themselves of such influence to procure an exorbitant and excessive award; that defendants counsel did avail himself of it and appealed to the arbitrators to be influenced by it, stating “>that that whole section of Putnam County was ablaze with excitement and that if they did not find a large award that the people in that section would be greatly disappointed in the arbitrators. ” And in speaking of the testimony of three of plaintiff’s witnesses, who were reputable and men of character and intelligence and whose testimony was unbiased, fair and just, defendants’ counsel said to the arbitrators: “May God help you if you are influenced by the testimony of these witnesses,” or words to that effect. Alleging that the award
Defendants filed their joint and separate answer denying that the arbitrators made any mistake or were guilty of misbehavior, or that they were influenced to any extent by illegal testimony admitted or by prejudice existing at Poca, or that such prejudice existed or that the award is uncertain, or that undue means were used by defendants or that they utilized the prejudice existing against the plaintiff at the place of hearing to procure a large award; averring that the place of hearing was mutually agreed upon by the parties; that the award is not excessive, but that it is less than defendants are entitled to; and denying that anything was said or done by counsel for defendants in the arbitration or in the submission of the evidence or argument before the arbitrators which might not be properly and legally done in any court.
Have the arbitrators by their finding “that the damages accruing to the defendants by reason of the said pipe line company taking the strip of land mentioned in said agreement for the purposes therein mentioned amounts to the sum of three dollars and fifty cents ($3.50) per rod” kept within the agreement of submission? It is contended by appellant that this language of the arbitrators necessarily implies the taking of the strip of land mentioned, notwithstanding the provisions in said agreement to the contrary where it is ■ specifically provided that the land is not to be taken, that no title shall xiass, “ but only the rights of way, with ingress and egress to and from the same.” These words are by the act of the arbitrators as if written into their award they having filed the agreement with the award. It will b e observed that the language of the award is that the damages accruing to the defendants by reason of the company taking the strip of land mentioned was for the purpose therein mentioned. The possession of the strip of land was taken for the purpose of laying the pipe; but the land, the title was not taken nor was it intended to be taken. Reading the award with and in the light of the agreement it cannot be said that the arbitrators intended by their words anything further than the use of the land for the laying of the plaintiff’s pipe line, and the use of the rights of way to maintain, operate and remove the pipe line as provided by the agreement, and could not have intended that the land should be taken in the sense in which the plaintiff by its condemnation proceedings was in the first instance attempting to take the land. The word “taking” is suffi-
It is further contended that the award is uncertain, that the location is not made therein. The agreement under which the award is made and which sets out the proposed change in location according to the agreement of the parties, is made a part of the award and filed with the same and taken together the location would seem to be definite as all parties were present when the line was staked out and shown to the arbitrators. It will be further seen that in describing the right of way the award takes up. each parcel, or the line through each of the properties, and says, “That said line runs through (A. B’s,) lands a distance of — rods as staked off and shown to us,” giving the number of rods which the line runs through each of the said parcels of land. It is further contended that the-line viewed by the arbitrators was not the line laid down on the maps nor the line actually used. The line laid down on the map by the surveyor is not precisely that agreed upon in the agreement and used but there is no evidence in the cause showing that the line agreed upon was not the line actually used. The award shows that the arbitrators adopted the line staked off and shown to us.” “Shown to us,” by whom? By the parties, of course, as both parties were present by themselves or agents or attorneys and agreed upon the line. It is insisted that the award is so grossly excessive as to indicate misbehavior and partiality on the part of the arbitrators, that the damages allowed are greater per acre than the land is worth, although little damage is done. There is not a scintilla of evidence in the record relating to-the value of the land, whether it is worth one dollar, one
A charge in plaintiff’s bill that defendants procured the said arbitrators to hold their sitting in the village of Poca knowing that there wras a decided prejudice existing in the said village against the plaintiff, that plaintiff was not aware of the said prejudice before the arbitrators began the hearing, that soon after the hearing began the plaintiff discovered the prejudice and requested the arbitrators to go to the court house that they might be removed from such prejudice. This allegation is denied in the answer wherein it is averred that the place of sitting was agreed upon by the parties, defendants and counsel for plaintiff, because of the convenience of the place to the rights of way to be examined, and it cannot be said that the arbitrators were guilty of misbehavior in refusing to change the place of sitting to a place seven miles distant upon the mere suggestion of the plaintiff, nor was it misbehavior on the part of the defendants’ counsel to object to such change, it not appearing that any tangible evidence was brought to the attention of the arbitrators to support the motion for such removal. In Burchell v. Marsh, 58 U. S. 344, it is held: “If an award is within the submission, and contains the honest decision of
Upon the question whether an award is within the terms of the submission all fair presumptions shall be made in favor, of the award; and if on any fair presumption the award may be brought within the submission it should be sustained. Pollock v. Sutherlin, 25 Grat. 78; Richards v. Brokenbrough, 1 Rand. 449; Coons v. Coons, 95 Va. 438, 28 S. E. 885; Armstrong v. Armstrongs, 1 Leigh 491. In Fluharty v. Beatty, 22 W. Va. 698: “Presumptions are not to be raised for the purpose of overthrowing
It is contended that the award should have ascertained the amount of damages, a sum certain, not so much per rod to be paid the defendants for the right of way, that a judgment could not properly be entered on the award. In 3 Oyc. at page 708: “ When an award furnishes a substantial basis by and 'through which the parties can, by calculation, by reference, to a fixed standard or. rule of law, * * * work out the contemplated result in accordance with the principles settled by, and the rights of the parties declared in, the award, it will be regarded as sufficient. In such cases courts give much force to the maxim certum est quod certum reddi potest.^ And authorities cited. And in 2 A. & E. E. L., 758, it is said: “An award will not be void for uncertainty although it does not specify the exact amount to be paid, if it gives the rule or indicates the means by which such sum can be calculated.” And at page 778: “The weight of authority in the United States leans toward making absolute the certain and simple rule that the award of the arbitrators, when made in good faith, is final, and that it cannot be questioned or set aside for a mistake either of law or of fact.” Citing decisions in support of the proposition not only several cases from the Supreme Court of the United States but many decisions from at least twenty-nine states of the Union; and the reason for this rule is well expressed by Chancellor Kent in the quotation I have made above from his very able opinion in Underhill v. Van Courtlandt; and also Shaw, C. J. in Boston Water Power Co. v. Gray, 6 Met. 131. See also Pleasants v. Ross, 1 Wash. (Va.) 156.
Appellant says the award should be set aside because the arbitrators admitted illegal evidence when the agreement of submission only authorized the admission of legal evidence. There is nothing in the record so show what evidence was before the arbitrators except an allegation of the bill that mentions 'one or two fragments of testimony on behalf of defendants of which complaint is made. In Bigelow v. Newell, 10 Pick. 348: “ Where an action and all matters in dispute between the parties, were submitted to referees, with authority to settle the rights of the parties and to
There is no intimation of fraud or corruption on the part of the arbitrators in case at bar. We find no reversible error in the decree of the circuit court and therefore affirm it.
Affi/rmed.