Noonan v. Orton
22 Wis. 84
Wis.
1867
Check Treatment
Cole, J.

The stipulation of the parties provided that it should be referred to James B. Francis, of Lowell, Mass., and Daniel Marsh, of Rochester, N. Y., to ascertain by actual guage and measurement, and to report to the court with all convenient speed, upon the points therein specified. It was “ further stipulated by and between the parties to said action, that the facts, estimates and' measurements reported *90by said referees, under and by virtue of tbe foregoing orders, shall, when so reported, be the finding of the court upon the same; and be signed by the judge and filed with the papers in the cause; and be a perpetual and conclusive record of such facts, estimates and measurements forever, between the said parties, Noonan & McNab and John J. Orton: that said finding of the court shall be deemed a special finding upon the facts, estimates and measurements embraced in said report; and be used and treated as such in the trial of this cause, as between the parties last above named; and also as between the same parties in the trial of any other actions growing out of or founded upon the lease mentioned in said complaint, in whatsoever county such actions, or any of them, may be pending.”

In regard to the appointment of referees, in case either one or both of those named should refuse to act, the stipulation piwided, that in that “ case the court, or the judge of said court in vacation, may at once appoint some other suitable person to act as referee in place of the one so refusing, or two other suitable persons to act as referees in the place of both so refusing, and that the clerk transmit the order, stipirlation and appointments so made to such other person or persons so appointed, with a similar request as above, until two referees shall have been found and appointed to act with all convenient speed; provided, however, that the person or persons so to be appointed shall be skilled in hydraulic engineering, and shall be non-residents of the state of Wisconsin.”

Erom the clauses of the stipulation above quoted, it is very manifest that the reference was not one under the statute. It was a reference made solely in accordance with the agreement of the parties. They saw fit to refer certain matters to the decision of two scientific engineers, who were to ascertain,- by actual guage and measurement, the facts upon *91the matters submitted, and report the same to the court. But the court was not to have the power of reviewing and correcting these estimates and measurements, or of setting the report aside, as in ordinary references under the statute. The facts, estimates and measurements reported by the referees were to constitute the finding of the court; be signed by the judge, and filed with the papers in the cause; and “be a perpetual and conclusive record of such facts, estimates and measurements,” embraced in the report. It was somewhat in the nature of an arbitration; that is, the parties agreed to submit to the engineers certain matter's, and their report thereupon was to take the place of the usual finding of the court in this suit, and be treated as conclusive upon those facts in any other actions between the parties growing out of the lease. The stipulation, however, gives the court no authority to review and correct the report in any manner. The estimates and report were final upon the matters submitted. McFarlane v. Cushman, 21 Wis., 401; Hills v. Passage, id., 294. This is the plain, positive language of the stipulation.

Further, did the stipulation give the court authority to set aside the report which was made by Marsh and Quimby, and refer the matters to Marsh and Worthen for a further report ? It appears to us not. It will be seen that the stipulation provides, in case either Francis or Marsh refuse to serve, that the court, or the judge thereof in vacation, proceed at once and appoint some other suitable person to act as referee in place of the one so refusing to act. Francis having refused to act, the court proceeded and appointed Quimby, who did act with the other referee. Now it is said the appointment of Quimby was irregular, because he was not the person named by the respondents. It is said the parties intended to keep, each for itself, the selection of a referee, and did not intend that the court should arbitrarily *92select for them. Such, is not .our construction of the stipulation. That does not reserve to the parties the right of nominating a referee. It gives the court or judge full power to ajDpoint some suitable person to act as referee in the place of the one refusing to act, only requiring that the person appointed shall be skilled in hydraulic engineering and not a resident of the state. These are the only limitations upon the authority of the court to appoint. These conditions were fulfilled in the appointment of Quimby. And he having consented to act, and having in fact acted, with Marsh in making the estimates and measurements upon the matters submitted, the court could not set aside the report. It is true, the stipulation provides that the report shall be signed by the judge, but we do not think it was intendéd by this language to give the court power to vacate and set aside the report when made. It was undoubtedly intended that he should sign the report; and whether he must not do so in order to make the report operative and effectual, is a question not now before us, and one upon which we do not wish to be understood as expressing any opinion. We have been considering merely the question whether, under the stipulation, the court had power to set aside the report when made. Upon that point we are clearly of the opinion that it had not. The parties submitted matters to the judgment of two hydraulic engineers, and their decision is final; or certainly should be treated so when signed by the.judge. It then partakes so much of the nature of a common law award, that it can only be impeached upon the usual grounds in a court of equity.

By the Court. — The order appealed from is reversed, and the cause remanded for further proceedings.

Mr, Justice Downer did not take part in the decision of this case.