Hughes v. Sarpy Cnty.

• Decision Date: 30 October 1914
• Docket Number: No. 17886.,17886.
• Citation: 149 N.W. 309,97 Neb. 90
• Parties: HUGHES ET AL. v. SARPY COUNTY.
• Court: Nebraska Supreme Court

97 Neb. 90

149 N.W. 309

HUGHES ET AL.

v.SARPY COUNTY.

No. 17886.

Supreme Court of Nebraska.

Oct. 30, 1914.

Syllabus by the Court.

Submissions of controversies to arbitration are to be liberally construed so as to give effect to the intention of the parties.It is the policy of the law to encourage the settlement of disputes without litigation, and awards are favored in law.

An award, when regularly made and published, is prima facie binding upon the parties thereto, and the burden of alleging and proving the contrary is upon the party seeking to impeach it.

County boards are vested with authority to submit matters in dispute to arbitration either under the provisions of the statute or the principles of the common law.

In a common-law submission an award was agreed upon by the arbitrators.It was written out, signed, inclosed in a sealed envelope, and given to one of the arbitrators for delivery.He failed to deliver it, but produced it in court upon an order being made to that effect.Held, that the intention at the time the award was signed was that it should be final, that it was not thereafter revocable by either party alone, and that the mere failure to deliver it did not operate to set it aside.

Where the evidence discloses that no hearing was contemplated, but that it was the intention of the parties that the arbitrators should meet at the proposed location of a road, view the premises, and award damages, and the arbitrators met in this manner upon a day fixed by one party, the other consenting thereto, the award is not void for want of notice of the time and place of the meeting of the arbitrators.

Appeal from District Court, Sarpy County; Travis, Judge.

Action by John Hughes, executor of the will of Bernard Hughes, deceased, and others, against the County of Sarpy.From judgment for plaintiffs, defendant appeals.Affirmed.A. E. Langdon and Elmer S. Nickerson, both of Papillion, for appellant.

John W. Parish and E. M. Martin, both of Omaha, for appellees.

LETTON, J.

Proceedings were taken by the county authorities of Sarpy county to locate and open a road along the west line of a certain tract of land belonging to one Barney Hughes.A claim for damages was filed by him in the sum of $2,500.Appraisers were duly appointed who awarded him damages in the sum of $211.This was reduced to $121.25 at the hearing before the board of county commissioners.Hughes died, and an appeal was taken to the district court by his successors in interest.

While the proceedings on appeal were pending in the district court one of the plaintiffs had a conversation with one of the county commissioners with respect to submitting the question as to the amount of damages to arbitration.Afterwards the board of county commissioners passed the following resolution: “Francis Fricke is appointed arbitrator for Sarpy county in the matter of the damages on the Barney Hughes place, by reason of the location of the public road on the west side thereof.”Afterwards John Hughes, as executor, and representing the other heirs, selected one Stickley as arbitrator for defendants.Fricke and Stickley met, made an examination of the land and of the Osage orange hedge and fences along the line, and wrote out and signed the following document:

_________ _________ 11.

“We, the arbitrators appointed to place a valuation on hedge and wire fence on Hughes' property, place value as follows:

+-----------------------------------------------------------------------------+
                ¦Hedge                                                     ¦$900 00¦          ¦
                +----------------------------------------------------------+-------+----------¦
                ¦Building fence on same 40 a.                              ¦75 00  ¦          ¦
                +----------------------------------------------------------+-------+----------¦
                ¦Removing old fence and building new fence on next 40 a.   ¦95 00  ¦          ¦
                ¦north                                                     ¦       ¦          ¦
                +----------------------------------------------------------+-------+----------¦
                ¦Next 40 a. north same                                     ¦95 00  ¦if        ¦
                ¦                                                          ¦       ¦desired.  ¦
                +-----------------------------------------------------------------------------+
                

J. F. Stickley,

Arbitrator for Hughes.

Francis Fricke,

Arbitrator for County.”

This paper was then placed in an envelope addressed to the county commissioners of Sarpy county and given to Fricke to file with the commissioners.He did not do so, but kept it in his possession until ordered to produce it by the court at the trial.The petition pleads these facts, and also pleads that the value of the Osage orange hedge was $1,000, and that the land actually taken was worth $1,500.The answer is a general denial.At the trial plaintiffs waived any rights to damages by virtue of the taking of the land, and admitted that the findings of the arbitrators for $1,070 is in full of all damages claimed by plaintiff against the county of Sarpy.At the close of the testimony the plaintiff moved for a directed verdict which motion was sustained, and the jury were directed to return a verdict for $1,070, the amount of the award.The county of Sarpy has appealed.

[1][2] The usual assignments of error are made, and in addition that the court erred in receiving the alleged award and in striking out the evidence of certain of defendant's witnesses who testified with respect to the value of the land before and its value after the opening of the road.The principal question involved is as to the weight to be given to the alleged award.The district court evidently treated the amount fixed in the award as a final determination of the value of the hedge, and, construing this in connection with the waiver by the plaintiff of all damages for the taking of the land, held it to be a final adjudication of the matters in controversy and as fixing the total damage of $1,070, the amount of the award.Whether this was correct depends...