Stewart. v. The County Court Op Monongalia County.

• Decision Date: 22 September 1925
• Docket Number: (No. 5440)
• Citation: 99 W.Va. 640
• Court: West Virginia Supreme Court
• Parties: Mattie E. Stewart et al. v. The County Court opMonongalia County.

99 W.Va. 640

Mattie E. Stewart et al.

v. The County Court opMonongalia County.

(No. 5440)

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1925.

Decided September 22, 1925.

1. Eminent Domain Arbitration and Award That Arbitrators to Ascertain Damages Suffered by Landowner Through Road Improvement Are to Decide on Matter of Public Interest Does Not Authorize Award by Majority. Submission to arbitration by a county court for the purpose of ascertaining* damages which a landowner has suffered by reason of road improvement through his land; does not constitute the arbitrators a board charged with the performance of public duties, acting under legislative authority, and the fact alone that they are to decide on a matter in which the public is interested does not authorize an award by a majority of the arbitrators, under the "public concern" exception to the general rule that all arbitrators must join in the award unless the parties expressly or by implication so stipulate in the submission, (p. 643).

2. Arbitration and Award Third Arbitrator to be Chosen by Two Named by Parties to Controversy Held to Have Concurrent and Equal Powers With Other Arbitrators. Where the submission to arbitration provides that two arbitrators shall be named by the parties, one by each party, and the two shall select a third arbitrator, all to be from the county, outside of the county seat, and not related by blood or marriage to the parties and not in the employment of one of the parties named, who shall make an award unon the matter submitted to them, the third arbitrator is not to be considered and treated as an umpire, but as clothed with concurrent and equal powers with the other two arbitrators, (p. 648).

3. Same In Absence of Express and Implied Provision in Submission That Majority Award to be Made, All Three Arbitrators Must Join in Award.

In such case, in the absence of an express or implied provision in the submission that a majority award may be made, all three of the arbitrators must join in the award to make it valid, (p. 649),. Error to Circuit Court, Monongalia County.

Action by Mattie E. Stewart and others against the County Court of Monongalia County on an award of arbitrators. Judgment dismissing the case, and plaintiffs bring error.

Affirmed.

Terence D. Stewart and Enoch M. Everly, and James A. Meredith, for plaintiffs in error.

W. French Hunt, J. W. Madden, and Baker, Posten & Downes, for defendant in error.

Lively, President:

A demurrer to the amended declaration was sustained, and plaintiffs not desiring to further amend, judgment of nil capiat was awarded and the case dismissed. This writ followed.

The declaration is based on an award of arbitrators for the sum of $3,400., being the amount of damages to the lands of the plaintiffs caused by the construction of a road known as the Morgantown and Fairmont Pike, through their lands. An injunction had been granted plaintiff Mattie E. Stewart in a chancery cause pending against the County Court of Monongalia County and the State Road Commission, seeking to enjoin defendants in some matter concerning the construction of the road. An amicable adjustment of the matters arising in the chancery cause was made; and Mattie E. Stewart and the other plaintiffs herein, Louise E. Stewart and 0. S. Stewart, whose lands adjoin the property of Mattie E. Stewart, the county court and the State Road Commission being desirious of arriving at the damages sustained to the lands of the plaintiffs by reason of the improvement of the road, a written agreement was entered into between the named parties, on July 14, 1923, for the purpose of ascertaining the damages sustained by the plaintiffs, and each of them, to their lands by reason of the construction of the road, and in consideration of the mutual benefits which would be derived by all of the parties by reason of such amicable adjustment and settlement of damages. By this agreement certain things were to be done by the county court and the State Road Commission concerning the construction of the road, especially with respect to the drainage therefrom on the lands of plaintiffs, and the county court agreed to pay the costs and counsel fees which had been incurred in the injunction suit and pay all the damages sustained by plaintiffs by reason of the construction and improvement of the road through their lands; the damages to them, and to each of them, to be ascertained by arbitration. Arbitrators were to be and were selected in the following manner; plaintiffs selected one and the county court selected one, and the two arbitrators so chosen selected a third. All parties were to be bound by the award made by the arbitrators. The parties agreed, that the arbitrators should be residents of Monongalia County, outside of Morgantown, and all to be real estate owners, and not related by blood or marriage to any parties in interest, nor employed directly or indirectly by the county court or State Road Commission. The amount of damages awarded to plaintiffs, and to each of them, was to be paid by the county court within thirty days after the award wTas made and filed by the arbitrators with the clerk of the county court. Joseph B. Snider was chosen, as arbitrator by the plaintiffs and Morton Van Voorhis was chosen by the county court, and these two selected C. J. Long as the other arbitrator, which selection was approved by the parties. On April IS, 1924, the parties served written notice on the arbitrators of their appointment, and directed them to proceed to the damages and make the award as soon

as may be. Pursuant to that notice the arbitrators went upon the lands of the plaintiff's on the 24th day of April, 1924 and on subsequent dates, for the purpose of investigation and discussion of the matters and things submitted to them, and an award was made in writing, by which they ascertained the damages to plaintiffs' property to aggregate the sum of $3,-400. This award, dated the 21st day of May, 1924, and signed by J. B. Snider and C. J. Long, "Arbitrators", was duly filed with the clerk of the county court. At a later date the plaintiffs appeared by counsel and moved the county court to pay the amount of the award, and presented an order to be entered for that purpose. The county court declined to enter the order or pay the award, stating that the entering of said order would be in violation of their oaths and in violation of the interests of the citizens of the county. The amended declaration charges that by said agreement the county court was enabled to proceed with the construction of the road, and received great and lasting benefits, the injunction suit having been thus amicably settled; that while the submission to arbitration does not refer to the third arbitrator (C. J. Long) as umpire, the intention of the parties in providing for the third arbitrator was that he should exercise the office of umpire, therebj^ insuring an award; and that it was not necessary that all three arbitrators should sign the award in order to make the same binding. The declaration charges that by reason of the premises and the award the county court is indebted to the plaintiffs in the sum of $3,400. which it refuses to pay, to the damage of the plaintiffs in the sum of $5,000.

The points raised on the demurrer were: (1) that the award was joint when it should have been separate; (2) that there was no allegation of notice by tbe arbitrators to the parties of the time of hearing; (3) the award was signed by only two arbitrators and was void; and (4) the contract of arbitration was ultra vires on the part of the county court.

The point of demurrer which will be taken up first and considered is, whether the failure of all of the arbitrators to concur in and sign the award renders it invalid. If the award be held to be invalid upon this point, the demurrer was properly sustained and it will not be necessary to consider the first, second and fourth points raised by the demurrer.

It is obvious from the agreement for submission, and is conceded by both parties, that the arbitration is not statutory, and is governed by the rules of common law. The arbitration is not made in a pending suit, and the award is not to be entered as the judgment of a court. At common law where the submission for an award is made to a given number of persons, without authority or direction that a majority decision may control, the award is invalid, unless made by all. Gas Co. v. Wheeling, 8 W. Va. 320. The rule is well stated in 5 C. J. page 96, See. 204, "It has been established as a general rule that under a submission to a number of arbitrators, without the expression of an intention that a majority or less than the whole number may exercise the power conferred, or of some special statute prescribing a different rule, it is necessary to the validity of an award that all the arbitrators should concur.'' To sustain the text cases are cited from practically all of the States. Counsel for appellees point out that this is the rule in England and in all of the States, except South Carolina and Louisiana, and such is the statement made in 5 C, J. page 97, Sec. 209.

Counsel for appellants concede this to be the rule, but contend that the agreement of submission, in the light of the circumstances surrounding it, should be construed to mean and intend that a majority award would be binding and valid. The amended declaration alleges that such was the intention of the parties. The intention of parties to an instrument in writing must be gathered from the writing itself if it be clear and unambiguous. We perceive no ambiguity in the agreement of submission.

Counsel for appellants would also escape the force of this common law rule of unanimity, under the exception to that rule, which exception, is that proceedings of special tribunals acting under legislative authority upon matters of public concern, stand upon a different basis from arbitrations purely private in their nature, and...