IN error from the Supreme Court. A declaration was filed in the
Court below by the plaintiffs in error, against the defendants, in
which they set forth, 'that on the _____ of _____ 1790, and thence
continually, they have been seised in their desmesne as of fee of
and in a certain water grist mill with the appurtenances, upon
Wissahicon creek in Philadelphia county; that the defendants all
the time aforesaid and still are in possession of a certain other
water grist mill with the appurtenances upon the same creek, and
below the mill of the plaintiffs; and that the defendants,
intending to injure the plaintiffs, had raised their dam
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higher, to wit _____ feet higher than the same had ever been
before raised, and thereby unjustly penned back, pent up, and
obstructed the water of the said creek between the said mills,
insomuch that the water of the creek during all the time aforesaid
overflowed and greatly damaged, spoiled, injured, and broke to
pieces the said mill of the plaintiffs, to their great damage in
their said hereditary estate, and whereby they were forced to
expend a large sum, &c. in repairing, &c.' The defendants
pleaded 'not guilty, with leave to alter, and give the special
matter in evidence:' and afterwards 'by ageement of attornies in
writing filed, all matters in variance between the parties, are
referred to William Ward Burrows, Alexander Martin, John Holmes and
George Eyre, who shall have full power to award whether any and
what sum shall be paid to the plaintiff by the defendant, and vice
versa, to settle their respective claims to the waters of the
Wissahicon creek, by fixing what shall be the heighth of the
defendant's dam, and whether any alteration shall be made therein,
and to direct articles to be executed accordingly: the report of
any three to be conclusive.' All the referees concurred in filing a
report, by which it was found and awarded, '1st. That the
defendants their heirs and assigns shall and may erect and complete
the mill-dam to their mill now belonging of a heighth corresponding
with the bottom of the hole now bored in a certain rock standing
and being on the north-east side of Wissahicon creek, near the said
mill. And the said dam of the heighth aforesaid shall and may
forever hereafter keep and maintain. And if the said defendants,
their heirs and assigns, or either, or any of them, shall and do
wilfully, or negligently, cause or suffer the said dam to be raised
higher than is hereinafter mentioned, then and in such case, it
shall be lawful for the plaintiffs their heirs and assigns, to give
a written notice to the defendants their heirs and assigns,
requiring them to reduce the said dam to its proper level, herein
before directed: and if the defendants their heirs and assigns,
shall neglect or refuse so to do, for thirty days after such
notice, the plaintiffs their heirs and assigns may summon three
freeholders, being indifferent men, to view and examine the same;
and if the said freeholders shall be of opinion that the
plaintiff's, &c. are injured by the said dam being carried up
higher than the level herein directed, they shall give a written
notice to the defendants, &c. requiring them to reduce the said
dam to its proper level; and if within thirty days thereafter, the
defendants, &c. shall not reduce the said dam to its level
aforesaid, the plaintiffs, &c. may lawfully enter upon the said
dam, and abate and prostrate the same. 2d. In consideration of the
foregoing privileges the referees order and award, that the
defendants, &c. holding the said mill, shall yearly, and every
year, pay 10l. to the plaintiffs, &c. the first payment to be
made on the 31st
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of March 1797. And also that the defendants do on the 31st of
March next pay to the plaintiffs 50l., which shall be in full of
all claims and demands on the part of the plaintiffs against the
defendants, on account of the said mill dam. Lastly: the referees
award and direct that the said parties respectively, shall mutually
execute and deliver proper deeds and instruments in writing, for
the granting, assuring, and confirming, as well the said privileges
hereby awarded to the said defendants, their heirs and assigns, as
the said annual payment to the plaintiffs, &c.: and it is
awarded and directed that the parties divide the costs.' On the
21st of March 1796, 'the report of the referees was read and
confirmed, and judgment nisi.' On the 22d of March, exceptions to
the report were filed; but after hearing witnesses, and the
argument of counsel, on the 14th of September 1796, 'the report of
the referees and judgment were confirmed': and thereupon the
present writ of error was brought. On arguing the cause in this
Court, Lewis, for the plaintiff in error, took the following
exceptions to the record: 1st. That the referees had exceeded the
authority given by the submission of the parties, inasmuch as they
have directed the plaintiffs to sell to the defendants, a certain
privilege, and have awarded an annual sum, to be paid by the
defendants to the plaintiffs, as the price of the privilege, which
were not matters in variance between the parties, nor included in
the rule of reference. 2d. That the referees have directed deeds to
be executed by the plaintiffs, for assuring to the defendants a new
right, not for settling the old rights of the parties (which are
alone contemplated in the submission) to the waters of the
Wissahicon. 3d. That the referees have established a new tribunal
for deciding the future controversies of the parties; a power which
is inconsistent with the general principles of law, and not
supported by the agreement, or submission, of the parties. 4th.
That the referees have awarded the parties to divide the costs.
5th. That the judgment in confirmation of the report being entered
generally, part of it cannot be affirmed, and part reversed. Carth.
235. 2 Bac. Abr. 227. The objections were answered by Rawle, for
the defendants in error, to the following effect: 1st. That the
submission was general, and shows the real points in controversy
between the parties: and on the principles of the law of awards in
Pennsylvania, the present award ought to be enforced. 1 Dall. Rep.
364. 314. 2d. That the report, as far as it awards the payment of
money, comes strictly within the act of assembly; but on the other
two
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objects of the report (the grant of the privilege, and the
execution of deeds to assure it) there could be no judgment, and
they remain in the record as rules of Court, to be enforced by
attachment, of which no writ of error lies. 3 vol. Penn. Laws, 97.
2 Bac. Abr. 215. 3 Inst. 31. 3d. That the present record is
informally sent up; but it may either be reduced to form by the
Court, or they may satisfy their consciences by awarding a
certiorari; which, however, the defendants in error have no right
to issue. 2 Bac. Abr. 204, 5. 5 Com. Dig. 166. 4th. That supposing
the present record, in all its parts, to be a subject for a writ of
error, it is a maxim, that no one can assign that for error, which
is for his own advantage. 2 Bac. Abr. 220. Thus, the referees find
that the defendants are entitled to the privilege, on paying for
it; but by way of further security to the plaintiffs, and for their
benefit, a summary examination by freeholders is provided, to
restrain subsequent encroachments. This is obligatory on the
defendants; but it is optional with the plaintiffs, who may have
recourse to the ordinary legal remedies. 5th. That the report of
the referees does not give any thing new to the defendants. The
subject in dispute and submitted, was, whether the defendants had a
right to raise their dam; and the referees find that they have such
a right, by an old continued compact, paying an equivalent. 6th.
That the referees, had power to make an award touching real estate.
Kid. 34. 133. 136. On the last day of the session, the COURT
mentioned, that they had not been able to form a decisive and
satisfactory opinion on the authorities and arguments in this
cause; and that, therefore, they would keep it under advisement
till the adjourned session. They added, that if the plaintiff in
error was to be considered as restrained from pursuing the ordinary
remedies of the law, and confined to the remedy prescribed in the
report, in case of any future nuisance, or encroachment upon his
rights, it was their present sentiment, that the referees had
exceeded their authority. The point, however, was not made in the
argument before the Supreme Court; and merits further
consideration. Cur. adv. vult. At an adjourned session, held on the
17th of January 1800, the judges delivered their opinions,
seriatim, but concurred in this general result:
By the COURT: The agreement of the parties constituted the
referees, the exclusive judges of the subject submitted to their
decision. It gave them, however, no power to delegate their trust
and authority to others; nor to erect a new and arbitrary
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tribunal, to determine future controversies. If the first set of
referees could proceed in this way, the set empowered by them,
might exercise a similar authority; and so ad infinitum, compel the
parties, without their consent, or controul, to resort to a
tribunal unknown to our laws. We are, therefore, unanimously of
opinion, that the referees exceeded their authority; and as their
report, or award, was confirmed, generally, by the Supreme Court,
the judgment of that Court must, also, be generally, reversed.
Judgment reversed.
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