State v. Loy
| Decision Date | 16 September 1941 |
| Docket Number | 6736 |
| Citation | 299 N.W. 908,71 N.D. 243 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Under the provision of Section 8327, Compiled Laws of 1913, a " question of title to real property in fee or for life" may not be submitted to arbitration.
2. Where, in an action to quiet title, the parties submit to arbitration the only question upon which issue is joined and a decision upon that question is determinative of title to real property, the submission is one of a question of title to real property and void.
Appeal from District Court, Mercer County; Harvey J. Miller, Judge.
Action by the State of North Dakota against H. B. Loy and others to quiet title to certain lands allegedly formed by accumulation and accretion in the bed of the Missouri river, wherein the named defendant filed a counterclaim to quiet title. By agreement, the parties submitted a certain question to a Board of Arbitrators. The named defendant moved to confirm the finding of the board, and the plaintiff moved to vacate the finding of the board. The district court confirmed the finding of the board and ordered judgment for the named defendant, and the plaintiff appeals.
Judgment reversed, and case remanded for further proceedings.
Alvin C. Strutz, Attorney General, Milton K. Higgins and C. E. Brace, Assistant Attorneys General, for appellant.
The question of title to real property in fee is expressly excluded by law (Comp Laws 1913, § 8327) from arbitration. Gallagher v. Kern, 31 Mich. 138; Lang v. Salliotte, 79 Mich. 505, 44 NW 938, 7 LRA 720.
In a land damage case, a view by the jury constitutes a special kind of evidence. Reed v. Central Maine Power Co. 132 Me 476, 172 A 823.
It is not proper to permit jurors to be in the company of a party or witnesses while going to or returning from a place of view or making their inspection. 64 CJ 90; Atlantic Coast Line R. Co. v. Sackinger, 96 Fla 422, 117 So 898.
Where an award is successfully impeached and set aside, the parties are thereby relegated to their former rights and an action will lie on the original demand. 6 CJS 246, § 103.
Fraud or misconduct vitiates an award. 6 CJS 747, § 104.
Newly discovered evidence or a plain misconception of facts may constitute grounds for impeachment of an award. 6 CJS 253 254, §§ 105, 146.
To constitute an accretion, there must be a gradual and imperceptible addition of soil to the shore line by the action of the water to which the land is contiguous. Meeker v. Kautz, 213 Iowa 370, 239 NW 27.
Where an island springs up in the midst of a stream, it is an accretion to the soil in the bed of the river, and not to the land of the riparian owner. East Omaha Land Co. v Hauser, 117 Iowa 98, 90 NW 705. See also Holman v Hodges, 112 Iowa 714, 84 NW 950.
In a navigable river, accretions to an island and the mainland, which eventually meet, belong to the land upon which the formation begins, and the line of contact becomes the boundary line between riparian owners. Waldner v. Beachisik, 65 SD 449, 274 NW 837.
Wilcox & Wilcox, for respondents.
To vacate an award on the grounds of misconduct of the arbitrator or on account of gross errors, the misconduct or errors complained of must be of such a character that the rights of the complainant were prejudiced thereby. Mansen v. Wilcox, 140 Cal 206, 73 P 1004.
Slight irregularities or indiscretions of arbitrators committed in good faith, and not resulting in injury, will not necessarily cause an award to be vitiated or disturbed. 6 CJS para. 104.
Invalidity of an award of a board of arbitrators to be available must be shown by clear and satisfactory evidence. Koepke v. Liethen Grain Co. 205 Wis 75, 236 NW 544.
All reasonable presumptions will be indulged in favor of awards to uphold their validity and give them effect. Caldwell v. Brooks Elevator Co. 10 ND 575, 88 NW 700.
Arbitration for settling controversies is favored. 2 Am & Eng Enc Law, 2d ed p 766; Woodwork Co. v. Schneider, 119 NY 475.
An award will not be set aside because of indiscreet conduct where there is nothing to indicate that the award was unjust. Davy v. Faw, 7 Cranch (U.S.) 171, 3 L ed 305; Hatch v. Coal, 130 Wash 706, 226 P 1119.
He who assails an award assumes the burden of establishing its invalidity. Greenvale County v. Spartanburg County, 62 SC 105, 40 SE 147.
Unless restricted by statute the right to alluvion does not depend upon whether the addition to the soil resulted from natural or artificial causes. 23 Wall. (U.S.) 46, 23 L ed 59.
Burke, J. Burr, Ch. J., and Nuessle and Christianson, JJ., and McFarland, Dist. J., concur. Mr. Justice Morris, being disqualified, did not participate, Hon. R. G. McFarland, Judge of Fourth Judicial District, sitting in his stead.
The state of North Dakota brought this action to quiet title to certain described lands located in Mercer county which it asserted were formed by accumulation and accretion in the bed of the Missouri River, a navigable stream. The defendant Loy filed an answer and counterclaim alleging that the described lands were formed by accretion to the bank of the stream and demanding judgment quieting title to that part of the described land which was contiguous to his riparian property. Before trial the plaintiff, the defendant Loy and the other defendants who had not answered entered into an agreement which was entitled, Agreement for Board of Arbitrators. By this agreement the parties consented to submit to a Board of Arbitrators consisting of three civil engineers the question as to "whether the said lands were an accretion to the bank of the Missouri River, or whether the said land is an island formed in the Missouri River with accretions thereto." It was also agreed therein "that said arbitration be conducted in all things as provided by chapter 40 of the Code of Civil Procedure of the state of North Dakota for 1913, it being hereby...
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