Hughes v. Sarpy County

• Decision Date: 30 October 1914
• Docket Number: 17,886
• Citation: 149 N.W. 309,97 Neb. 90
• Parties: JOHN HUGHES, EXECUTOR, ET AL., APPELLEES, v. SARPY COUNTY, APPELLANT
• Court: Nebraska Supreme Court

149 N.W. 309

97 Neb. 90

JOHN HUGHES, EXECUTOR, ET AL., APPELLEES, v. SARPY COUNTY, APPELLANT

No. 17,886

Supreme Court of Nebraska

October 30, 1914

APPEAL from the district court for Sarpy county: HARVEY D. TRAVIS JUDGE. Affirmed.

AFFIRMED.

E. S Nickerson and A. E. Langdon, for appellant.

John W Parish and Edward M. Martin, contra.

LETTON, J. BARNES, FAWCETT and HAMER, JJ., not sitting.

OPINION

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:

"We, the arbitrators appointed to place a valuation on hedge and wire fence on Hughes' property, place value as follows: Hedge, $ 900. Building fence on same 40 a., $ 75. Removing old fence and building new fence on next 40 a. north, $ 95. Next 40 a. north same, $ 95 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.

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 at $ 1.070, the amount of the award. Whether this was correct depends upon the weight to be given to the finding of Fricke and Stickley as an award. It is clear that what was done did not constitute a binding arbitration under the provisions of the statute. Rev. St. 1913, secs. 8218-8235. The submission was not in writing, it was not acknowledged, nor was it made by order of court in a pending suit. None of the essential elements to an arbitration under the code appear in the record. Was this award final and binding under the common law?

In Greer v. Canfield, 38 Neb. 169, 56 N.W. 883, the facts were that by an oral agreement a certain dispute was left to be settled by arbitrators. The testimony as to the form of the submission was indefinite, but one of the arbitrators said he understood that they were to decide all matters of difference between the parties. The arbitrators considered the statements of the parties with reference to each item, and as to some of them heard evidence and arrived at a conclusion, though no oath was administered to any witness. The validity of the award was attacked, but this was held to be a good common-law arbitration. "This is a common-law award, and a submission made by either party either by word or...