Robinson v. Shanks

• Decision Date: 27 March 1889
• Docket Number: 13,223
• Parties: Robinson v. Shanks et al
• Court: Indiana Supreme Court

20 N.E. 713

118 Ind. 125

Robinson v. Shanks et al

No. 13,223

Supreme Court of Indiana

March 27, 1889

From the Dearborn Circuit Court.

Judgment affirmed.

J. K Thompson, for appellant.

N. S Givan, for appellees.

OPINION

Coffey, J.

This suit was brought by the appellant against the appellees in the circuit court of Dearborn county, the complaint charging that the appellant and the appellee Rachel Shanks are adjoining land-owners; that there is an ancient watercourse, called Leeper's run, passing through said appellee's land and across the line dividing their lands; that for more than twenty years the water discharged from said watercourse was carried off by an artificial canal, constructed by appellant's grantor on appellant's land, into another stream called Salt Fork of Tanner's creek, thus protecting appellant's land from overflow; that, on the 1st day of November, 1883, the appellees unlawfully and wrongfully, at a point ten to fifteen rods above where said Leeper's run crosses the line dividing the lands of appellant from the lands of appellee Rachel, and empties into said artificial canal, obstructed said Leeper's run by constructing a dam across the bed and channel thereof, by filling the same with brush and stones, and by digging an artificial channel so as to conduct the water flowing down said watercourse to a point on said dividing line about eight rods west from where the natural channel of said run crossed the same, and wholly diverting the water discharged therefrom away from said artificial canal; that, by reason of diverting said watercourse, the water discharged therefrom has been thrown upon the land of the appellant, rendering five acres thereof, worth five hundred dollars, wet and marshy and incapable of cultivation, washing away the soil, and in hard rains washing stones upon the surface thereof, and washing away tiles placed therein to drain the same, and during the current year, by reason of the overflow of said land, caused by said diversion, appellant lost five acres of corn of the value of one hundred dollars.

The appellees filed a general denial to this complaint, which put the cause at issue. The cause, being at issue, was by agreement of the parties, made in open court and entered of record, referred to James McKinney and Ferris Nowlin, as arbitrators, with power to choose an umpire. At the same time said McKinney and Nowlin chose Isaac B. Ward as such umpire, which choice was at once entered of record. The arbitrators were authorized by the order of reference not only to try the matters involved in the issues, but also to determine and locate the division line between the lands of the parties, and to call to their assistance for that purpose, if necessary, a practical surveyor. The parties to the suit, by the order of the court, were not permitted to be present while the arbitrators were engaged in viewing the premises or locating the dividing line.

Said arbitrators and umpire filed their report fixing the boundary line between the parties, and finding against the appellant on the claim set up in his complaint. They awarded that each party should pay one-half the costs of the suit and arbitration.

The appellees filed a motion to set aside the award and for a new trial, alleging, as cause therefor, misconduct of the appellant, in this: That in violation of the order of the court he was present while said arbitrators were viewing the premises and establishing the boundary line, and gave counsel and direction as to the same; that he induced one of said arbitrators to go to his house and remain over night and partake of his hospitality while engaged in hearing said cause, and that he induced two of said arbitrators, while engaged in hearing said cause, to go with him to the hotel and take dinner with him at his expense.

Affidavits were filed by the appellees in support of their motion. Appellant moved to strike out and reject these affidavits, but the court overruled the motion, and he excepted. The appellant then filed counter-affidavits, and upon the final hearing of the motion the court sustained the same, and set aside the award, to which appellant excepted. On motion of the appellees the order referring the cause to arbitrators was set aside, and the cause ordered to stand for trial, to which appellant excepted.

The cause was then tried by a jury, resulting in a verdict for the appellees. Over a motion by the appellant for a new trial the court rendered judgment on the verdict.

The appellant assigns as error:

1st. that the court erred in sustaining the motion of the appellees to set aside the award of the referees.

2d. That the court erred in its judgment setting aside the award of the referees, and especially that part of it rendering judgment for costs against the appellant before the referees.

3d. That the court erred in refusing to modify the judgment as prayed for by the appellant.

4th. That the court erred in overruling the motion of the appellant to reject the affidavits of Maggie Shanks, Eliza Shanks, Henry Blasdell, Lewis Nowlin and Harry Nowlin, filed with the motion to set aside the answer.

5th. That the court erred in overruling the objection of the appellant to oral testimony of the referees, McKinney and Ward, to impeach the award.

6th. That the court erred in receiving the oral testimony of James Liddell to impeach the award.

7th. That the court erred in setting aside the order of reference to James McKinney, Isaac B. Ward and Ferris Nowlin.

8th. That the court erred in rendering judgment for the costs of the trial before the referees against the appellant.

9th. That the court erred in ordering the trial of said cause by a jury against the order referring the same for trial to James McKinney, Isaac B. Ward and Ferris Nowlin.

10th. That the court erred in overruling the motion of the appellant for a new trial.

As the first nine assignments of error relate to the matter of setting aside the award and ordering the cause to stand for trial as if no reference had been made, it is not improper to consider them together.

In resisting the motion to set aside the award, the appellant filed the affidavits of the referees McKinney and Ward in support of their award. On the final hearing of the motion, the court permitted the appellees to call these arbitrators and examine them orally, in open court, over the objection of the appellant.

By the affidavits filed by the appellees and by the examination of these arbitrators, it is made to appear that the appellant, on one occasion, while the arbitrators were engaged in the discharge of their duties on the premises, brought from his residence a lunch, of which they all partook. The arbitrator McKinney stayed at the house of the appellant several nights while engaged in the performance of his duties as arbitrator. The arbitrator Ward, while engaged in hearing the testimony in the cause, on one occasion took dinner at the hotel at the expense of the appellant.

By section 851, R. S. 1881, any matter involved in a pending suit may be referred, by consent of the parties, by rule of the court, to certain persons mutually chosen by them in open court, if such matter might have been the subject of arbitration.

When the report of such referees is returned, under the hands of the referees, or a majority of them, it is entered on the order-book and has the same effect and is as available in law as the verdict of a jury. The same influences or misconduct that would avoid the verdict of a jury ought to avoid the award.

In the case of Moshier v. Shear, 102 Ill. 169 (40 Am. Rep. 573), one of the three arbitrators, after his appointment, conversed fully on the merits of the dispute with one who had previously acted as an arbitrator in respect to the same matter, and whose award had been set aside. For this reason the award was set aside.

In the case of Catlett v. Dougherty, 20 Rep. 714 the party in...