White v. Herminghausen

• Decision Date: 16 September 1918
• Citation: 205 S.W. 624,275 Mo. 687
• Parties: C. O. WHITE v. L. W. HERMINGHAUSEN et al., Appellants
• Court: Missouri Supreme Court

205 S.W. 624

275 Mo. 687

C. O. WHITE v. L. W. HERMINGHAUSEN et al., Appellants

Supreme Court of Missouri, First Division

September 16, 1918

Appeal from Chariton Circuit Court. -- Hon. Fred Lamb, Judge.

Affirmed.

O. C Herminghausen and S. J. & G. C. Jones for appellant.

(1) The surveyors having failed to establish the line in the form and manner provided in the stipulation, namely, by making a survey in accordance with the government field notes, their report is void, of no effect, is not binding, and should have been rejected by the court. Squires v. Anderson, 54 Mo. 193; Ellison v. Weather, 78 Mo. 124; Lorey v. Lorey, 60 Mo.App. 420; Coffin v. German Fire Ins Co., 42 Mo.App. 295; 3 Cyc. 674, 675. (2) The reports of the surveyors, being separate, individual and independent of each other, and no survey being concurred in by a majority of the surveyors acting under the stipulation, rendered their proceedings of no effect. Besides, the surveyors must act together -- that is, as a body. When the two selected by the parties failed to agree, and which failure necessitated Jacoby acting as a third, he could not act independently of the others. He could only act jointly with the others. 3 Cyc 653, 655, 666.

J. A. Collet for respondent.

(1) The law favors adjustments of controversies and discourages litigation, and the proceedings of the arbitrators will be liberally construed and their award upheld if it can be done without doing violence to the submission. 3 Cyc. 673. (2) Appellant will be held to the observance of the terms of the stipulations signed by him. Dowling v. Wheeler, 117 Mo.App. 169; Stone v. Trust Co., 183 Mo.App. 261. (3) Jacoby was not acting as a member of the board of arbitrators, but was an umpire chosen only to act in case of disagreement between members of the board of arbitrators, and it was proper for him to act alone as such umpire, and he had full authority in making his finding to decide all questions involved in the submission. 3 Cyc. 663; Home Insurance Co. v. M. Schiff's Sons, 103 Md. 164; Hartford Fire Ins. Co. v. Bonner Merc. Co., 56 F. 378; Lyon v. Blossom, 11 N.Y.S. 318; Tyler v. Webb, 49 Ky. 123; Havan v. Winnisimmet Co., 93 Mass. 377; Ingraham v. Whitmore, 75 Ill. 24.

OPINION

WOODSON, J.

This is a suit in ejectment, brought by the plaintiff in the circuit court of Chariton County, to recover a strip of land off the east side of the northeast quarter of Section Four, Township Fifty-five, Range Twenty, in said county, containing some twelve or thirteen acres.

The plaintiff recovered a judgment for the possession of the land in the circuit court, and after taking the proper preliminary steps, the defendants duly appealed the cause to this court.

The controversy grows out of the location of the dividing line between the parties' farms. Prior to the institution of this suit repeated efforts were made by the parties to agree upon a dividing line, all of which came to naught, and thereupon this suit was instituted. While this suit was pending the parties again attempted to settle their differences and in pursuance thereto, on September 19, 1914, entered into the following written stipulation:

"It is hereby stipulated and agreed by and between the parties to the above entitled cause that said cause shall be compromised and dismissed upon the following terms and conditions, to-wit:

"First: It is agreed that the true line between the Northwest Quarter of Section Three, Township Fifty-five, North, Range Twenty, West, in Chariton County, Missouri, the property of C. O. White, and the North East Quarter of Section Four, Township Fifty-five, North, Range Twenty, West, in Chariton County, Missouri, the property of O. C. Herminghausen, shall be ascertained and determined by a legal survey to be made by two competent surveyors, one of whom shall be selected by plaintiff and the other by defendants, and in the event that the two surveyors thus chosen should fail to agree, then, the parties hereto agree upon C. E. Jacoby as the third surveyor, who shall decide all matters of difference between said two surveyors chosen by the parties hereto, and the line considered as the true line between the lands of plaintiff and defendants, and the parties to this suit agree to stand to and abide by such survey. However, in making such survey, the same is to be made from the United States field notes.

"Second: Both parties to this suit shall be notified of the time when said survey shall be made and shall have the opportunity to be present during said survey in person or by representative.

"Third: Said surveyors shall make and return to this court their report, showing the location of said line so made by them, and if said line does not coincide with the line as now marked by the fence between the aforesaid Northeast Quarter of Section Four and the Northwest Quarter of Section Three, they shall, by proper description, show the lands embraced between the true line so found by them and the line as now marked by said fence, and judgment shall be entered by this court in accordance with said report and shall be accepted by the parties hereto as a final judgment.

"Fourth: It is hereby further stipulated and agreed that this cause shall be transferred to the circuit court of Chariton County, Missouri, at Keytesville, and stand for final disposition at the November, 1914, term of said court at Keytesville.

"Fifth: It is further stipulated and agreed that the costs of making said survey, together with all court costs which have heretofore accrued in this suit, shall be divided and paid equally by the parties hereto.

"Signed in duplicate this 19th day of September, 1914."

Under the terms of this stipulation, plaintiff elected A. F. Arrington, a civil engineer of Chariton County, Missouri, and defendants M. E. Bannon, a civil engineer of Fort Madison, Iowa, to make a survey of the land in dispute between the parties.

In pursuance to the terms of said stipulation the parties to the same and the said engineers agreed upon met on the premises and proceeded to make the survey of the line and land in controversy. Arrington and Bannon, having failed to agree upon the dividing line, each of them as provided for by said stipulation made out and filed in said case their separate report, which are quite lengthy, showing the points wherein they agreed and disagreed; and thereupon said engineers, in compliance with the terms of said stipulation, called in C. E. Jacoby as the third engineer to decide the differences between them. After the latter had been called, the two reports of Arrington and Bannon were submitted to him and he was requested to proceed with the performance of the duties imposed upon him by the stipulation.

When these stipulations were submitted to him Jacoby was uncertain as to his duties and how he should proceed to discharge them. That is, he was uncertain whether he should get the board together and make a re-survey of the whole thing or whether he, acting by himself and as umpire in the matter, should decide the questions not agreed upon by the other two surveyors. With these questions in his mind he took the matter up with both parties to the suit and also with the court, and after consultation between the counsel representing both parties and the court, without dissent or disagreement Mr. Jacoby was advised that under the terms of the stipulation he should treat as fixed and settled all points on which the two...