#### CHARLES W. CULLIFER *vs.*JOHN R. GILLIAM & AL.

The power of an arbitrator is derived, entirely, from the agreement of the parties, as expressed in the submission, and their award must be made in strict accordance with it, and must neither go beyond nor omit any thing embraced in it.

Where the words of an arbitration are ambiguous, such a construction ought tobe given to them, as will best co-incide with the apparent intention of the arbitrators.

Where the submission was in the following words, “We hereby bind our* selves to abide the damage awarded lo C. C. by C. J and W. W. for the overflowing a certain tract of land, by our mill pond, this 4th of July, 1847. Signed by G. <$• B.;” and the award was, “We the undersigned have this day viewed the land belonging to C. C., covered by the water of the mill, [T *late*the property of G. and B., and do assess the damages, which the said C. C. has sustained for the year 1847 at $26 26, for the year 1848 at $23, for the year 1849, at $23, for the yeas 1850 at $16, and for the year 1851 at $16, and due respectively the January succeeding each year, that is, the damage for 1847 due 1st January, 1848, and so for each year; *Held,*that the arbitrators exceeded their powers and the award was void, because the apparent intention of the submission was only to refe.r the amount of damages due at the time of the submission.

The case of *Gilbert*y. *Jones,*1 Dev. and Bat. 339, cited and approved.

Appeal from the Superior Court of Law, of Bertie County, at the Fall Term, 1848, his Honor Judge Bailey presiding.

*127This is an action, of debt, commenced by warrant upon the following award : “We, the undersigned, have this day viewed the land belonging to Charles M. Cullifer, covered by the water of the mill, *late*the property of John R. Gilliam and Levin Butler, and do assess the damages, which the said Cullifer *has*sustained, for the year 1847, at $26 26 ; for the year ’48, at $23 ; for the year ’49, at $23 ; ior the year ’50, at $16, and for the year’51, at $16; and due, respectively, the January succeeding each year —that is, the damage for 1847, due 1st January, 184S, and so for each year.” Signed and sealed by the arbitrators, 7th Januarjr, 1848. The submission, on the part of the defendants, is, as follows. “We hereby bind ourselves, to abide the damages awarded to Charles Cullifer by Charles Jaeocks and William Williams, for the overflowing of a certain tract of land, by our mill pond, this 4th of July, 1847.” Signed, Gilliam and Butler. The submission on the part of the plaintiff bore the same date and was of similar import. The action is brought to re> cover the assessment of the damages for 1847. The jury found a verdict for the plaintiff, subject to the opinion of the Court, and the Court being with the defendants, a judgment of non suit was entered — from which the plaintiff appealed.

*P. H. Winston, Jr.,*with whom was *Biggs,*submitted the following argument:

Two grounds were taken below.

First. That the submission so restricted the referees that they did wrong in giving damages for overflowing after 4th July, 1847.

Secondly. That the referees did over-step this restriction, and that in each case the ground appeared on the face of the paper.

His Honor being of opinion that both grounds did thus *128appear, non-suited the plaintiff after the verdict of the jury.

The plaintiff insists that in the Supreme Court the judgment of non-suit should be reversed, and judgment given for him on the verdict.

It is clear, that unless both grounds do appear on the face of the papers, as contended for, the judgment must be reversed. Either not thus appearing will give the plaintiff a judgment.

First then, were the referees restricted as contended for? What did the parties intend should be settled by the referees ? They intended either the whole damages, the damages to the time of the award ; or the damages only which the plaintiff had suffered up to 4th July, 184T. If they intended either of the two first, then this action must lie,for nothing is claimed now but the damage incurred before the date of the award.

The subject matter of reference may be considered in construing a submission. Here then was an injury, which, if not completed on the 4th July, 1S47, was at least of a continuing nature, and was (as the defendants say,) going on at the very instant of the submission. If the question of intention were left to a jury, not one in a thousand would hesitate. Arbitrators are a Court chosen by the parties, and the law, obeying good sense and reason, encourages the settlement of difficulties in this way: “No strained construction shall be resorted to, to make ihe submission and award disagree.” True it is that a distinct substantive matter arising after submission cannot be considered by referees. But this is not a case within that rule. A money dispute, arising after reference of a land dispute, cannot be decided by the arbitrators. But suppose a man wounds my slave the 1st January. The 2nd, we refer the damage. The 1st February; an award is made that I shall receive $10 a month for six months, payable monthly. This is like the case under *129consideration. The body of the injury in both cases is complete at the reference. The resulting damages however are in the future. Could we not get two physicians to say how long a broken leg would require to become firm. The negro might go on lessening in value all his life. The same is true in referring the damage for slander, *The offence*is complete by the words. The damage goes on *ad infinitum.*

Again: A Court of law as a general rule can consider nothing- arising after the writ is commenced. And it is on the ground that nothing but the first dispute was referred to them. If, though, an exception is made to this rule in the case of damages from mill ponds, and the exception to the rule in question be correct, why not let referees on this subject, also, act as Courts of law do. The Courts are daily in the habit of giving prospective damages for overflowing land.

Again: The submission in this case would have been as good without as with writing. No rule requires writing. Therefore this submission could have been explained, varied, or even contradicted by parol evidence of subsequent assent of the- parties. *Smith on*Contracts, *page 27.*Did not his Honor then infringe a right of the plaintiff in taking *it*as conclusive upon the face of the submission T

Should the law find out that these parties intended the referees to assess the damage until' the 4th of July, when did the damage begin ? If any thing less than the whole damage was to be assessed, would not the- parties have told them to assess it from such a day to such a day *t*Why have the time with no certain beginning, and perhaps with- 4 or some other number of odd days ?

The parties did not intend to limit the referees as contended for: “The damages,’* means, unless restricted, *all*the damages.

*130Secondly. If the referees were restricted, as contended for, does it appear by their award that they have overstepped the restriction ?

This is an action of debt on an award, and the law is, that only so much of the award as the action refers to is to be read or considered. 1 *B. M.*278. The award, so far only as it refers to the damages for the year 1847, is therefore to be considered.

How then did his Honor find out that in giving $26 26 for the year 1S47, the referees took into account any overflowing after the 4th July, 1847. When an award directs any thing to be done up to the time of the award, and the submission extended to the time of reference only, it shall not be intended that any new matter arose in the interval, and unless such matter be shewn, the award will be good. 12 *Mod.*116, *Comb.*418. The award says that for the year 1847, the referees assess the damages at $26 26, but they do not say that the overflowing was continued without interruption from 1st January, to the last of December. Indeed, it is a well known fact, that generally, the water in mill ponds is higher from about the last of January until the 1st of June, than at any other time of the year. And in case the pond in question was a large one, the edges of it might encroach on the plaintiff’s land during the Spring, but not at any other time. It might be that a corn crop was prevented by the water being there at planting time. Or even that some other crop less valuable than corn, by $26 26, was cultivated, because of the dampness produced by past overflowing. It may have been a fact that the pond was drawn off on the 3rd of July, and filled up again the 2nd of January, following.

How then does it appear that damages were given for overflowing subsequent to the 4th of July ?

Indeed it would be quite as plausible for the defendants to take the ground that it appeared by the submission *131that the whole damage was submitted, whereas the award did not appear to cover the whole damage.

"In all cases an award should be construed favorably and liberally.” *Billing, p.*78.

"No man ought to take his chance before referees, and being dissatisfied with their decision, to try his chance before a jury.”

This award was evidently given by the referees in analogy to the manner in which juries give damages on a petition. The costs of a jury were doubtless what the parties were willing to avoid. The award looks fair on its face, and unless the law be perfectly clear against it, the proceeding ought to be sustained. The interference of any cunning technical rule of law, with the universal sense of mankind, ought to be avoided if possible.

*W. N. II. Smith,*for the defendants, submitted the follow argument:

The submission is, of "damages” *sustained*by the overflow of the plaintiff’s lands, and not of the value of the *easement*or *right*to over-flow. These damages are commensurate with the injury *already*sustained, such as would be recoverable by action brought at the *date*of the submission.

If this be the true construction of the *agreement to refer,*it is submitted, that the award is void by *excess.*

The award embraces *annual*damages for several successive years, extended over each year, and.estimates the injury as resulting from a supposed continuation of the ponded water for that time.

Nor is this *excess*separable from the matters *within*the terms of the submission. The first assessment of damages is for an *entire*(the preceding) year.

An award of several things *within,*and of others *without*the submission, is good for the former, if they are distinguishable from the latter; but if the award be of *132*one entire sum,*the Court cannot discriminate and apportion it to the matters submitted, and those not submitted. The whole award is in such case void.

5 *Com. Law. Rep.*20. *Watson on Awards, Law Lib-page*241.

In submitting a term for years, and all things dependent thereon, an award to pay a sum at a future day for future rent is void, as the rent may cease. *Watson on Awards, Law. Lib. page*192. So in the present case, the award is predicated upon the supposition of a continuance of the over-flow, for several years, and assumes *to*measure the damages it *will cause*for each of those years. Rut the over-flow may vary, or the mill go down, and the over-flow wholty cease, and with it the damages supposed to result.

Second. It is further insisted, if the more enlarged construction be allowed, that the award is *insufficient,*for not including *all*the *matters*submitted.

The award is not of a *given sum*or *sums,*(payable in instalments) for *all*damages, heretofore or hereafter to be sustained; but it is, by its plain terms, an assessment for five years, of the damages for each of those year’s severally. It directs a sum certain to be paid *for each*year, at its termination. In analogy to the redress provided by the Act of Assembly, it ascertains damages for several years, leaving undetermined those that may follow, to be the subject of new controversy.

It is submitted, that, construing the submission in a liberal sense, it was to embrace all the matters connected with the ponding of the water, and remove all cause of future dispute.

The referees have not, in this aspect of the case, *passed*upon all the *matters submitted,*and their award not covering the entire subject of dispute, but being partial, is variant from the submission, insufficient and void.

4 *Com. Law Rep.*421. *Watson on Awards, Law Lib. pages*242, 243.

*133Nash J.

The power of an arbitrator is derived, only, from the agreement of the parties, as expressed in the submission, and their award must be made in strict accordance with it, and must neither go beyond nor omit any thing embraced within it. The first enquiry, in this case, is as to the nature and extent of the submission,— The defendants were owners of a mill, and their dam ponded the water on the land of the plaintiff and occasioned an injury to it. On the 4th of July 1847, the parties entered into an agreement to refer the matter in controversy. They selected two gentlemen, in whom they had confidence, to settle the dispute between them, in order, we presume, to avoid the delay and expense of a law-suit. What, then, did they submit ? . The language of the agreement is not so explicit as it might have been, but sufficiently so, we think, to show their intention. The defendants bind themselves to abide the damages, awarded to Charles Culiifer, by Charles Jacocks and William Williams, for the overflowing of a certain tract of land by their mill-pond. We understand the parties to mean, that the arbitrators should assess the damages then sustained, to wit, the 4th of July 1847. There is nothing in the submission, which looks to damages to be sustained after that time. They wished to make a lumping matter of it, and that they might know what sum, *in solido,*they should pay for *all the present*injury. This was not done by the arbitrators ; but they give their judgment,that the defendants shall pay a certain sum^ that for which the action is brought, as damages for the whole of the year 1847.

This, we think, was error, as giving damages for time not embraced in the submission. It is, however, urged on the part of the plaintiff, that, from the words used in the award, it was the intention of the arbitrators to confine their judgment to damages sustained previous to the 4th of July, 1847, and that the award will well bear that *134construction. When the words of an award are ambiguous, such a construction ought to be given them, as will best coincde with the apparant intention of the arbitrators. *Watson on Awards,*105. Here, however, the arbitrators do not leave us in doubt as to their meaning ; they say they assess the sum of *$26*26, “for the damages, which the said Cullifer has sustained for the *year*1S47.” In this language there is no ambiguity ; if there was, it is made plain by their going on to assess damages for the next succeeding four years, and give no damages for the time between the 4th of July 1S47 and the 1st of January ’48

It is further argued, that it was the intention of the parties to the award, that the arbitrators should assess the damages under the provisions of the aetj of Assembly ; and that such was the view taken by them. If this be so, the award is not the less defective. The 13th *sea of the*74th *clu Rev. Stat.*directs the jury to “makeup their virdict, as to the sum, which the petitioner is entitled to receive as an annual compensation for the damages sustained &c,” “ which verdict shall be binding between the parties for five years, unless the damages should be increased, by raising the water or otherwise, if said mill is kept up.” It is not the intention of the law, that the judgment for the damages, shall, in every event, be binding on the parties for five years. If the defendant increase the injury within that time by raising his dam, the plaintiff may have his damages increased ; if the defendant should abate the nuisance altogether, he may, by an *audita querela,*or some other action, set aside the judgment for the residue of the damages. *Gilbert*v. *Jones*1st Dev. & Bat. 339. If it was the intention of the parties, that the arbitrators should pursue the provisions of the act, and of the arbitrators so to do, they have not made their award in conformity to them. They have made no provision whereby the plaintiff can be redressed *135should the dam be raised, nor, for the defendants if, they should have taken it down the day after the award was made. The award, therefore, in this view of it, is defective. It does not embrace ali the matters referred and is not final in any aspect. In whatever light we consider the award, it is defective, and the plaintiff cannot support *his action.*

Per Curiam. Judgment affirmed.