Plumer v. Wausau Boom Co.
| Decision Date | 30 March 1880 |
| Citation | 5 N.W. 232,49 Wis. 449 |
| Parties | PLUMER v. THE WAUSAU BOOM COMPANY |
| Court | Wisconsin Supreme Court |
Argued March 15, 1880
APPEAL from the Circuit Court for Outagamie County.
The defendant appealed from a judgment in favor of the plaintiff. The case is stated in the opinion.
Judgment affirmed with costs.
For the appellant there was a brief by Silverthorn & Hurley, and oral argument by Mr. Hurley:
The award was void. 1. It should have conformed strictly to the statute under which it was made. Morse on Arb., 263; Darling v. Darling, 16 Wis., 644; Steel v Steel, 1 Nev., 27. The statute requires notice to the parties in interest. This is jurisdictional, and cannot be waived. There was no notice whatever to Stewart, assignee of McIndoe, and none of the meeting of the appraisers, to any one. On this point see Peters v. Newkirk, 6 Cow., 103; Lutz v. Linthicum, 8 Pet., 178; Jordan v Hyatt, 3 Barb., 634; Rigden v. Martin, 6 H. & J., 403; Walker v. City Council, 1 Bailey Eq., 443. 2. By the stipulation of the parties represented, the award was to be made by January 1, 1873. Not having been made within that time, it could not be made afterwards. Morse on Arb., 83, 84, 173, 224, 261; Smith v. Spencer, 1 McCord Eq. (S. C.), 92; Hall v. Hall, 3 Conn., 308; White v. Puryear, 10 Yerg., 441. 3. The award is uncertain and indefinite. It is impossible to tell therefrom what property was appraised, or what rights, interests or title appellant would acquire by payment thereof. The award is appellant's title deed, and the property and franchises for which it requires payment should be clearly defined, so that further litigation may be avoided. Howard v. Babcock, 21 Ill., 265; Schuyler v. Van DerVeer, 2 Caines, 235; Gratz v. Gratz, 4 Rawle, 411; Brown v. Hankerson, 3 Cow., 70; McCracken v. Clarke, 31 Pa. St., 498; Pettibone v. Perkins, 6 Wis., 616; McCord v. Sylvester, 32 Wis., 451; Sicard v. Peterson, 3 S. & R., 468. 4. The matters submitted were not all determined, and the award is therefore not final. It expressly excepts from the things adjudicated, among others, all "private interests in any land or islands." This exception includes the right of use of the river banks, one of the most important and valuable rights sought to be secured in these proceedings and which was plainly within the terms of the submission. This exception is fatal. Pettibone v. Perkins, 6 Wis., 624; Dundon v. Starin, 19 id., 261; Gear v. Bracken, 1 Pin., 249; McFarlane v. Cushman, 19 Wis., 357; Morse on Arb., 340, 345, 384-386; Ott v. Schroeppel, 5 N. Y., 486; Wright v. Wright, 5 Cow., 197; McNear v. Bailey, 18 Me., 251; Richards v. Drinker, 1 Halst. Law, 307; Harker v. Hough, 2 id., 428; Carnochan v. Christie, 11 Wheat., 446; Edwards v. Stevens, 1 Allen, 315; Varney v. Brewster, 14 N. H., 49; Wyman v. Hammond, 55 Me., 534; 22 Pick., 417; 17 id., 98; Russell on Arb., 234, 253, 258; Buntain v. Curtis, 27 Ill., 374; 42 Me., 9; Craig v. Wells, 11 N. Y., 321; 3 Russ., 494; Karthaus v. Ferrer, 1 Pet., 222; 1 Caines, 304; 2 Cow., 638; 10 N. H., 254; 50 Me., 398; 16 Gray, 299; Bradford v. Bryan, Willes, 270; Jones v. Welwood, 71 N. Y., 211.
For the respondent there was a brief by Finch & Barber, and oral argument by Mr. Barber:
1. The defects in the notice were not jurisdictional in the sense that they could not be waived. And the subsequent stipulation of the parties and voluntary submission to the arbitration was a waiver. Rothbauer v. State, 22 Wis., 468; Ladd v. Hildebrant, 27 Wis., 135; Keeler v. Keeler, 24 id., 522; Lowe v. Stringham, 14 id., 222; Swift v. Harriman, 30 Vt., 607; Maxfield v. Scott, 17 id., 634; Spauldmg v. Warren, 25 id., 316; Hix v. Sumner, 50 Me., 290. 2. The sale by McIndoe of his interest in the piers and booms to Stewart does not affect the validity of the award as to Plumer. The interests of, the several owners were separate and distinct, and the award as to one may stand although it fall as to others. Morse on Arb., 31, 453, 480, 521, 577, 588; Lamphire v. Cowan, 39 Vt., 420; Schuyler v. Van Der Veer, 2 Caines, 235; Finley v. Finley, 11 Mo., 624; Blanchard v. Murray, 15 Vt., 548; Orcutt v. Butler, 42 Me., 83; Butler v. Mayor, etc., 1 Hill, 489; Fidler v. Cooper, 19 Wend., 289; Cutter v. Whittemore, 10 Mass., 442; 13 id., 244; Keith v. Gore, 1 J. J. Marsh., 8; Elliot v. Davis, 1 Bos. & P., 338; Summerville v. Painter, 44 Pa. St., 110; Smith v. Virgin, 33 Me., 148; 22 Wend., 125; Parmelee v. Allen, 32 Conn., 115; Tracy v. Herrick, 25 N. H., 401. Again, when Stewart bought of McIndoe, the proceedings were pending and undetermined, and he had knowledge of that fact. By his own acts he brought himself within the operation of the award, and is bound by it. George v. Johnson, 45 N. H., 456; Humphreys v. Gardner, 11 Johns., 61; Morse on Arb., 521. The objection that Stewart had no notice is one which affects him only, and cannot be raised by the boom company. It does not appear that he is dissatisfied with the award, or that he has not in fact ratified it. 3. It is claimed that the award is uncertain, and that it does not include all the property mentioned in the charter. Every reasonable presumption should be made to uphold rather than defeat the award. Slocum v. Damon, 1 Pin., 520; Merritt v. Merritt, 15 Ill., 565; Kendrick v. Tarbell, 26 Vt., 416; Morse on Arb., 446-7. Certainty to a common intent is all that is required, and technical precision is unnecessary. Morse on Arb., 408; Russell on Arb., 275; Purdy v. Delavan, 1 Caines, 304; Butler v. Mayor, 1 Hill, 489; Akely v. Akely, 16 Vt., 450; Perkins v. Giles, 53 Barb., 342, 349; Jackson v. Ambler, 14 Johns., 96; Henrickson v. Reinback, 33 Ill., 299. As the award refers to the order, stipulation and charter, if by reference to these external sources of information it is capable of being reduced to certainty, it is good. Bancroft v. Grover, 23 Wis., 463; Pick v. Rubicon Hyd. Co., 27 id., 433; Butler v. Mayor, 1 Hill, 489; Cargey v. Hitcheson, 5 Dowl. & Ry., 433; 33 Ill., 299; Prettyman v. Walston, 34 id., 175; Bird v. Bird, 40 Me., 398; Harmon v. James, 15 Miss. (11 S. & M.), 111; Pipkin v. Allen, 29 Mo., 229; Jackson v. De Lancy, 11 Johns., 365; Morse on Arb., 438; 56 Ill., 439. From these sources it clearly appears that the property to be appraised, and which was actually included in the award, was that which was jointly owned by the three men, Clark, McIndoe and Plumer. This included the system of piers and booms, and nothing else. These men, and they alone, were made parties to the proceedings. The company had not, and never have, appropriated any private lands on the river shore or the islands, and none were intended to be included in the appraisement, either by the original order or the stipulation of the parties. As a matter of course, whatever rights or easements these original owners had acquired in the bed or banks of the river as appurtenant simply to the working of the system of booms, would pass without specific mention. Neither were they excluded, or intended to be, by the exception in the award of "private interests in any lands or islands."
The following opinion was filed March 30, 1880:
ORTON J. Walter D. McIndoe, Bradbury G. Plumer and John C. Clark were the joint owners of certain booms and piers in the Wisconsin river, near the city of Wausau, in the following proportions, viz.: McIndoe owned three-ninths, Plumer four ninths, and Clark two-ninths. Desiring to operate their works to better advantage, and with enlarged powers, they procured the passage of chapter 45 of the Private and Local Laws of 1871, incorporating the company, of which they were to be the principal stockholders. Section 20 of said chapter empowered the corporation to take possession of said booms and piers, "and any lands adjacent to said river," provided the company should pay to such owners of the booms and piers, and in such proportion, and to the owners of such land, reasonable compensation therefor, when the amount should be ascertained as provided in section 21. This last section provides for the appointment of appraisers to value said property, by the judge of the circuit court of Marathon county, upon the application of the company or any of the parties interested. Upon the application of B. G. Plumer, the respondent, and upon proper notice, the Hon. George W. Cate, judge of said court, on the 18th day of September, 1871, appointed Joseph Desert, Benjamin Single and William P. Kelley such appraisers.
On the 22d day of August, 1872, McIndoe died, and the Hons. G. L Park and James O. Raymond were appointed his executors; but before he died (and at what exact time is not stated in the record), he sold his interest in the booms and piers to one Alexander Stewart. It is admitted in the brief of the appellant's counsel, that at the time the notice was given and the order made for the appointment of the appraisers, "McIndoe was alive, owned and was in possession of the property." After considerable delay in making the appraisement, and on the 30th day of December, 1872, a written stipulation was made and signed by the president and secretary of the company, by Park and Raymond, the executors of McIndoe, deceased, and by John C. Clark and the respondent, Plumer, which authorized and directed said appraisers to proceed and "appraise the property and award the damages," "on this 30th day of December, 1872, without further or other notice," and which waived "all notice, technicalities and informalities." On the same day the appraisers took and subscribed the proper oath to "faithfully and impartially make the appraisement; " and on the first day of January, 1873, by a stipulation signed by the president and secretary of the company, by Park and Raymond per one Walter...
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