
    Aaron Lincoln vs. The Taunton Copper Manufacturing Company.
    A submission to arbitration, of a claim for damages done to land of one of the parties by the manufactory of the other, required the arbitrators to appoint the time and place of hearing by giving written notice to the parties : The arbitrators made their examinations of the land at three different times, the first and last of which were made in company with the owner thereof, without notice to the other party, and at the last examination they stated to their chairman, that they had seen enough to decide whether the land was damaged, and what was the cause thereof: They afterwards appointed a time and place for a hearing, and gave notice thereof to the parties, but heard no witnesses, and as their chairman testified, “ did not come to any other judgment,” than they formed upon the premises. It was held, that their subsequent award in favor of the owner of the land was void.
    This was an action of debt on a bond to abide the award of arbitrators, appointed by a written agreement between the parties “ to ascertain and determine, first whether any damage recoverable at law has been done to [certain] meadow lands of said Lincoln; secondly, whether said damage, if any, has been caused by the operation of the mill or works or business of said company; and, thirdly, if any damages, as aforesaid, have been thus caused, to determine and award what amount of pecuniary damages, if any, conformably to the legal rights of each party, the said company shall pay to the said Lincoln in full discharge of all present and future claim or claims for damages to said lands, from the causes aforenamed; the said Lincoln to give and execute a deed to said company and their assigns, forever quitclaiming and releasing for himself, his heirs and assigns, all his and their right, title and claim whatsoever to any damage to said lands that may arise from or be consequent upon the operation of the mill or works, the smelting and manufacture of copper or other metals, and the prosecution of the business of said company.” This agreement also contained the following provisions: “ It shall be the duty of said arbitrators, through their chairman, to appoint a time and place for the hearing of said, parties, respecting the questions in dispute, by giving to each party fourteen days’ written notice thereof; and if either party shall neglect to appear before the said arbitrators, after such notice has beer duly given, at the time and place appointed for the hearing, the said arbitrators may proceed in his or their absence to hear testimony, examine the premises, and determine and award upon the matters submitted to them: ” “ The award of the majority of the arbitrators, the other or others dissenting, shall be regarded, to all intents and purposes, as the award of the whole.”
    The case was tried before Metcalf, J., and by him reported, after a verdict for the plaintiff, for the consideration of the full court. The plaintiff offered in evidence an award signed by a majority of the arbitrators, which stated that the subscribers, “ having carefully viewed and examined the premises mentioned [in the agreement of submission], and having duly appointed a time and place for the hearing of said parties, and duly notified each party of the same, according to said agreement, and having heard and considered all the allegations, proofs and agreements of said parties and their counsel, and having fully investigated and considered all and singular the questions and matters submitted to them by said agreement, do determine and award that damage recoverable at law has been done to the said meadow lands of said Lincoln ; and that said damage has been caused by the operation of the mill or works or business of said company. And they farther determine and award that said company pay to said Lincoln the sum of five hundred dollars damages in full discharge of all present and future claim or claims for damages to said land from the causes aforenamed, and that said Lincoln give and execute a deed to said company and their assigns according to the terms of said agreement.” It was admitted that the plaintiff tendered a sufficient deed to the defendants, before bringing this action. The evidence introduced at the trial, is sufficiently stated in the opinion.
    
      T. D. Eliot, for the defendants.
    
      N. Morton, for the plaintiff, cited Graves v. Fisher, 5 Greenl. 69.
   Fletcher, J.

The instrument of submission in this case expressly requires, that before hearing testimony and examining the premises, a time and place for hearing the parties shall be appointed, and the parties respectively duly notified and have opportunity to attend.

The evidence, as reported, shows that some time before the time and place of hearing were appointed, the arbitrators, with the plaintiff and his son, as one arbitrator expressly testified, (but another arbitrator testifies that the plaintiff’s son was present, but does not recollect that the plaintiff was there), went upon the premises and made a pretty close examination; they went up and down the meadow for perhaps two or three hours, and the plaintiff and his son talked and made statements. The defendants were not present by their agent, and appear to have had no notice of the proceeding at the time. At a subsequent time and before the appointment of the time and place of hearing, the arbitrators again examined the premises with the plaintiff, and the defendants’ agent was then present, and complained that the plaintiff had been with the arbitrators at the previous meeting.

After this the arbitrators went a third time upon the premises, and, as appears by the testimony, as reported, of one of the arbitrators, the plaintiff and his son were present, but the defendants were not present by their agent, and do not appear to have had any notice of this proceeding at the time. The chairman in his testimony says: “ When the arbitrators were on the land the third time, I inquired if they had viewed enough to decide the first point, as to whether the land is damaged, and what was the cause, and understood they had, and I put the question to them.” Thus it appears that the arbitrators came to a conclusion upon the merits of the case, apon these ex parite hearings and examinations, and before any time and place for hearing the parties were appointed. Having thus in effect decided the case without hearing the parties, the arbitrators appointed a time and place for a hear ing, and notified the parties. But no witnesses were examined on oath, and no hearing in fact appears to have been had, and so far at least as the merits of the case were concerned— that is, so far as respects the inquiry, whether the plaintiff’s meadow was damaged by the defendants’ works — the award was founded wholly on the opinions formed by the arbitrators upon their ex parte hearings and examinations. The chairman says, “we did not come to any other judgment on these questions afterwards.” The time when this judgment was formed on the exponte proceedings, was about a month before the time appointed for the hearing of the parties.

There is no reasoning, or principle or authority, which will support such an award. The proceedings of the arbitrators were contrary to the plainest principles, and wholly inconsistent with a due administration, of justice.

This opinion proceeds on a ground wholly irrespective of any ruling or charge of the judge at the trial.

New trial granted  