Greenville County v. Spartanburg County

• Decision Date: 01 August 1901
• Citation: 62 S.C. 105,40 S.E. 147
• Parties: GREENVILLE COUNTY v. SPARTANBURG COUNTY et al.
• Court: South Carolina Supreme Court

40 S.E. 147

62 S.C. 105

GREENVILLE COUNTY

v.SPARTANBURG COUNTY et al.

Supreme Oourt of South Carolina,

Aug. 1, 1901.

AWARD—VALIDITY—APPOINTMENT OF ARBITRATORS—APPEAL—REHEARING.

1. In the absence of fraud or palpable mistake, apparent on the face of an award, in an action to enforce the same the court should sustain the majority of the arbitrators, though the third arbitrator could not attend final meeting after notice.

2. Where a statute providing for arbitration between two counties gives the county supervisor the right to appoint an arbitrator within six months, and the one so appointed declines to act, the appointment of another after the time fixed is valid.

3. Where an arbitrator is treated by the parties as such, they cannot thereafter object to the legality of his appointment.

4. Where the court overlooked the correction of a typographical error which caused an erroneous statement as to the pleading, it is no ground for rehearing, where the court's determination was reached irrespective of such pleading.

Appeal from common pleas circuit court of Spartanburg county; Gage, Judge.

Action by the county of Greenville against the county of Spartanburg and others to enforce award of arbitrators. From a judgment dismissing the complaint plaintiff appeals. Reversed.

The following is so much of the complaint as states the first cause of action, and the answer thereto:

"(1) That the plaintiff is a body politic and corporate under the laws of the state of South Carolina. (2) That the defendant the county of Spartanburg is a body politic and corporate under the laws of the state of South Carolina. (3) That the defendants W. L. Epps and L. P. Epton are, respectively, the duly appointed and qualified treasurer and auditor of the county of Spartanburg.

(4) That the defendant the Pelham Mills is a corporation duly chartered and organized under the laws of the state of South Carolina.

(5) That for many years there has existed a dispute between the counties of Greenville and Spartanburg touching the location of the boundary line between them, beginning at a point on the North Carolina line near Tryon Mountain, and running to a point on Enoree river, at or near what is anciently known as 'Abner's mill.' (6) That various ineffectual efforts have been made to compose said dispute, and in view thereof the general assembly of the state of South Carolina enacted a joint resolution, approved 5th January, 1895, entitled 'A joint resolution to provide for locating the boundary line between Spartanburg and Greenville counties at and near Pel-ham Factory'; the said joint resolution being set forth in full in 21 St. at Large, p. 1143. (7) That In compliance with the terms of the said resolution, and within six months from the approval thereof, the supervisor of Greenville county, on the——day of——, 1895, appointed I. H. Harrison its surveyor; the supervisor of Spartanburg county on the —— day of ——, 1895, appointed G. E. Ladshaw as its surveyor; and on the —— day of ——, 1896, these two surveyors agreed upon W. J. Kirk as the third surveyor to locate the boundary line as aforesaid. (8) That the said three surveyors went over the line indicated in accordance with the instructions contained in said joint resolution, and on the 11th day of March, 1896, a majority of them, to wit, I. H. Harrison and W. J. Kirk, met at Greenville, —notice of said meeting having been previously given to G. E. Ladshaw, the other surveyor, who declined to attend, —and agreed upon and filed their report, fully and minutely fixing and locating the disputed boundary line. (9) That the said surveyors before entering upon said survey notified the supervisors of Greenville and Spartanburg counties of the time when they would begin the location of said boundary line. (10) That after said surveyors had agreed upon their report they made three separate certificates of the location made by them, one of which they deposited in the office of the county board of commissioners of Greenville and Spartanburg counties, respectively, and one in the office of the secretary of state, and in all three of said offices the same were duly recorded. (11) That the said surveyors have erected suitable monuments, to wit, granite posts, to preserve the location of said line made by them. (12) That it is impracticable to make copies of said report and the plaintiff craves that reference thereto on file in said offices be made as often as may be necessary. (13) That the defendant the county of Spartanburg declines to recognize the said location as the true boundary line between it and the plaintiff."

The defendants the county of Spartanburg and W. L. Epps and L. P. Epton, as treasurer and auditor, respectively, of the said county, answering the complaint herein, by their attorneys, Hydrick & Wilson, respectfully show to the court: "(1) That they admit the allegations of the paragraphs thereof numbered 1, 2, 3, 4, 6, and 13, in the first cause of action, and so much of the paragraph numbered 3, in the seer id cause of action, as alleges 'that the auditor and treasurer of Spartanburg county have refused to recognize the said location as to the true boundary line, ' and deny all other allegations therein contained, except as hereinafter admitted, explained, or modified. (2) That the joint resolution of the general assembly referred to in paragraph 6 of the complaint does not upon a fair interpretation thereof, authorize any change in the location in the boundary line between said counties, which had been previously established by the constitution and laws of the state; and, in so far as it may be construed as doing so, it is unconstitutional, null, arid void. (3) That the terms of said resolution were not complied with in the appointment of said surveyors, and that the surveyors so appointed did not perform the duty with which they were charged in accordance with the directions contained in said resolution. (4) That before the work of locating said line was begun, in order to facilitate and expedite the work of gathering the necessary data for the correct location thereof, in accordance with the terms of said resolution, the said surveyors agreed that they would use two corps, —one to be in charge of Mr. George E. Ladshaw, the surveyor appointed by the supervisor of the county of Spartanburg, and the other to be in charge of Mr. I. H. Harrison, the surveyor appointed by the supervisor of the county of Greenville, —and that the chief of each of said corps should pursue his own methods, and that after the field work had been done, and the field notes worked over, and maps and charts made, they would meet and discuss their differences, if any, with the third surveyor, Mr. W. J. Kirk, and endeavor to agree upon the location of said line, in accordance with the terms of said resolution; it being understood that the said third surveyor, Mr. W. J. Kirk, would, during the progress of the work in the field, attend and ascertain the methods and accuracy of the work done by each corps. That after the field work had been done, and before Mr. Ladshaw had had time to work over his notes and prepare the necessary maps for the final discussion of the question as to the correct location of said line, Messrs. Harrison and Kirk met and, without anynotice of time or place of their meeting having been given to Mr. Ladshaw, they made the report and sketch of the location of said line mentioned and referred to in the complaint. That said report bears date March 11, 1896, but its true date is April 11, 1896. That on April 10, 1896, the said George E. Ladshaw wrote a letter to the said I. H. Harrison, and thereby notified and informed him, in substance, that he, the said George E. Ladshaw, could not be in Greenville until after April 11, 1896, and that he would not be able to have his field notes prepared, and the necessary plats of his work in the field made for conference and discussion as to the location of said line, until after said last mentioned date. That said I. H. Harrison received said letter before said report was adopted and signed, and that he not only did not notify the said W. J. Kirk of its contents, or of the facts which its contents disclosed, but, on the contrary, led him, the said W. J. Kirk, to believe that the said Geo. E. Ladshaw had been duly and regularly notified of the time, place, and object of their meeting, and that the said George E. Ladshaw had failed and refused to attend the said meeting, thereby depriving the county of Spartanburg of any representation in the decision upon the location of said line. That said conduct of the said I. H. Harrison and the said conduct of I. H. Harrison and W. J. Kirk, In meeting and deciding upon the location of. said line, and in adopting and signing report, in the manner and under the circumstances aforesaid, was improper, unfair, partial, and contrary to law, and highly prejudicial to the rights and interests of the defendant the county of Spartanburg. (4a) That the said I. H. Harrison did not have the proper conception of his duties in the premises. That he did not consider or deem it his duty to act fairly and impartially between said counties in the location of said line, but he considered and deemed himself, and acted throughout as, the representative of the county of Greenville. That the said I. H. Harrison and W. J. Kirk were greatly biased and prejudiced in favor of the county of. Greenville and against the county of Spartanburg, and allowed their said bias and prejudice to influence and control their judgment in the location of said line. That, governed by their said bias and prejudice, and a predetermined intention to locate said line so as te throw the whole of the new mill of the Pelham Mills into Greenville county, without regard to the evidence as to the true and correct location of said line, they willfully, and with the intention to accomplish the purpose aforesaid, ignored and refused to consider the evidence as to the true and...