Hart v. Kennedy

• Decision Date: 19 June 1890
• Parties: HART et al. v. KENNEDY.
• Court: New Jersey Court of Chancery

20 A. 29

47 N.J.E. 51

HART et al.

v. KENNEDY.

Court of Chancery of New Jersey.

June 19, 1890.

(Syllabus by the Court.)

Charles M. Woodruff and Flavel McGee, for the complainants. Charles J. Roe and Lewis Van Blarcom, for defendant.

VAN FLEET, V. C. The object of the suit in this case is to compel the defendant to perform an award requiring him to lower a dam which he has erected across the Request creek, in the county of Sussex. Besides answering, the defendant has filed a cross-bill asking that the award may be set aside. The complainants now move, on notice under paragraph 224 of the rules, to strike out all the material parts of both the answer and cross-bill, on the ground that, if everything alleged in them is admitted to be true, still a decree must go in favor of the complainants: the contention being that the facts set forth in the defendant's pleadings constitute neither a defense to the complainants' action, nor a sufficient foundation for the affirmative relief which he asks. The defendant seeks to impeach the a ward—First, because one of the arbitrators who made it was selected by chance; second, because a majority of the arbitrators were guilty of gross misbehavior; and, third, because two of the arbitrators were incompetent and partial.

To render it easy to understand the questions raised by the motion, it is necessary that a statement should be made, showing what preceded the making of the award which is the subject of the present controversy. The complainants had brought two actions against the defendant,—one at law, to recover damages for the injury their lands had sustained by back-water; and the other in equity, to compel the defendant to lower his dam. The defendant denied the complainants' right to maintain either action. While these two suits were pending, the parties, in December, 1888, agreed to submit the matters in difference between them to the decision of three competent and impartial civil engineers, who understood the force, pressure, and effect of water,—one to be selected by the complainants, another by the defendant, and the third by the other two. The three so selected were to survey the ground, take levels, and determine-First, whether back-water on the lands of the complainants was caused by the dam of the defendant, and whether his dam caused water to overflow and damage the lands of the complainants; and, second, if so, how much the dam of the defendant should be reduced to prevent such backwater. Two of the three arbitrators were selected by the parties. The defendant, by his answer and cross-bill, avers that, when the two selected by the parties met to select the third, they each named a person, but, as the person named by each was unknown to the other, neither would consent to the appointment of the person named by the other; and that the two thereupon, by mutual consent, proceeded to choose the third by casting lots in this wise: Each wrote the name of the person he wanted chosen as the third arbitrator on a slip of paper; the two slips were then put into a hat, and one of them drawn out by a third person; and the person whose name was so drawn was then, on the same day, appointed by the two as the third arbitrator, by a writing which both signed. The person thus chosen was nominee of the arbitrator selected by the complainants. The defendant, by both his pleadings, says that each of the two arbitrators refused to agree to or accept the person named by the other as the third arbitrator, for the reason that the nominee of the other was unknown to him, and that he had had no opportunity to inquire concerning him, and he did not, therefore, know whether or not he possessed the qualifications required by the arbitration agreement. The award was made by only two of the three arbitrators. The arbitration agreement empowered a majority to make an award. The two who made the award were the arbitrator selected by the complainants and the person who acted as the third arbitrator. The defendant, by both his pleadings, alleges that the two arbitrators who made the award refused to hear any evidence on his part, pertinent and material to the matters in dispute. He says that when they first met to enter upon the discharge of their duties, as well as subsequently, he asked permission to lay such evidence before them, but that his request, each time it was made, was refused. He further says that the evidence he asked permission to lay before them consisted, as he stated to them, of the testimony of witnesses who had been acquainted with his lands and those of the complainants for 40 years and upwards, and who knew the lands of both before any dam existed on the lands which he now owns; and which would have shown that the lands of the complainants are not now submerged to any greater extent, nor in any worse condition, than they were before any dam was erected on the lands now owned by him; and which testimony would also have proved that the lands of the complainants, which it is claimed are injured by back-water, have always been, as well now as before the erection of any dam on the lands which he now owns, swampy, low, and boggy, holding a large quantity of water; and that the Request creek, where it passes through the lands of the complainants, is now, and always has been, a sluggish and crooked stream, obstructed in its course; and that the rise and fall of water on the complainants' lands was not caused by his dam, but by dams further up the stream, which penned back the water, and then discharged it, at intervals, in volumes larger than the water-way could carry; thus causing it to flood the complainants' lands.

The foregoing statement exhibits the only really substantial grounds disclosed by the pleadings on which the validity of the award can be attacked. The averments of the answer and cross-bill charging two of the arbitrators with incompetency and partiality are not sufficient, in my judgment, even assuming them to be true in all their length and breadth, to justify the court either in refusing relief to the complainants, or in giving affirmative relief against them. No fact showing incompetency is alleged. All that the defendant says against the two whose fitness he impugns is that he has no knowledge or information respecting their qualifications, and therefore charges that they are not persons of the character and qualifications required by the arbitration agreement. He makes his ignorance the basis of his accusation. A pleading of this kind requires no criticism. The form in which the charges of partiality are made is also manifestly imperfect as a pleading. Not a single fact showing partiality is alleged as a fact which can be proved. All that the defendant's pleadings say on this point is that he has been informed and believes that one of the arbitrators, during the progress of the arbitration, said to one person that the defendant's dam must be lowered 18 inches, and to another that the third arbitrator was under his influence, and would do whatever he wanted him to do. The issue tendered by this form of pleading is, as is apparent, utterly immaterial; but, were the form of the pleading changed so that what is now alleged on information and belief would be directly averred as a fact which could be proved, still the pleading would not, in its changed form, aver any fact which, if proved, would make the award invalid. An expression of opinion by an arbitrator, during the progress of the arbitration, concerning any of the matters in dispute, may show lack of discretion, or want of proper appreciation of the proprieties of his position; but such act, standing alone, furnishes no evidence whatever of partiality; and certainly a mere boastful claim of influence by one person over another should under no circumstances be accepted as proof that the boaster possessed what he claimed. In my opinion the complainants are entitled to prevail in their motion as to those parts of the answer and cross-bill in which the defendant alleges that two of the arbitrators were incompetent and partial, and also as to those parts of the defendant's pleadings in which he charges two of the arbitrators with misconduct because they refused to make an experiment which he requested them to make.

But, as to the other parts of the defendant's pleadings which the complainants ask to have expunged, there would seem to be no doubt that the defendant has a clear right to have them stand, and to go to hearing on them. This branch of the case presents two questions, the first of which is, was the third arbitrator selected in such manner as to render an award made by the majority of the arbitrators, of whom the third was one, valid and effectual against the defendant? The arbitrators were to be gentlemen possessing special scientific qualifications. They were to be civil engineers who understood the force, pressure, and effect of water. Two were to be selected by the parties, and the two thus selected were to choose the third. The two, in choosing the third, performed, in the language of Justice COLERIDGE, a judicial act of the last importance to the parties, in the performance of which the parties had a right to the exercise of their joint judgment up to its entire completion. Lord v. Lord, 5 El. & Bl. 404-407. Knowledge is indispensably necessary to judgment. It was not possible for either of the two to form such a judgment respecting the fitness of the person proposed for the third as the parties were entitled to, unless he had either...