Wood against The Auburn and Rochester Rail Road Company, 8 N.Y. 160

Johnson, J. Having come to the conclusion that the award in this case was binding upon the company, I do not think it necessary to consider the authority of the company to procure the subsequent appraisement of damages under the statute, or any of the questions relating to that proceeding. The valid award of course renders them inoperative.

I can not find either in ch. 349 of the Laws of 1836, or ch. 290 of 1838, any warrant for holding that the rail road company could not by purchase acquire the title to real estate for their road, until all the provisions of §4 of the first mentioned act, as to designating the route of their road, were complied with.

The route between Canandaigua and Rochester, had in point of fact been fixed upon, and that portion of the road was almost completed, and title had been acquired or arrangements of a satisfactory character for acquiring title entered into with the owners of all the lands on that part of the route except the complainant, (Ans. fol. 179,) before the agreement for arbitration was entered into.

If the question related to the power of the company by appraisement to acquire the title to land, it may be that we should hold that the filing of the certificate of the route under \ 4, was necessary as a condition precedent, but I do not think either the reasons for a such a construction, or the language of the act, require us so to hold in regard either to purchases or voluntary grants and donations. The authority conferred upon the corporation to acquire land by purchase, is very broad, and it would not be possible to deny that they were purchasers of this land, if they had performed the award.

The corporation and the owner were each competent to contract in reference to the price, and I see no objection to their agreeing to pay. and his agreeing to receive such sum as the price as the arbitrators should fix.

With reference to the authority of Higham and Traver to make the submission, the case stands upon the answers of the defendants, which though they deny that those parties had any express authority from the board of directors, do state that Higham was the general agent of the company and as such had made agreements for land for the road: that both he .and Traver before the agreement with the complainant to submit, had submitted the claims of other individuals both for land and damages, to arbitration, and that all such agreements had been carried into effect by the company: that no special or direct authority to make submissions was ever given by the company to Higham or Traver, but that Higham was authorized by the company as their general agent to make agreements for acquiring the title to lands for the road, and that there was a standing order of the board of directors, to the financial officers of the company to pay for such lands as Higham should procure for the company: that Higham under this authority fouifd it necessary to employ an assistant and so employed Traver, who- accordingly acted and with the knowledge of- the company made numerous contracts for the purchase of lands: that Higham and Traver did in sundry cases make submissions of the price of lands to arbitrators agreed upon by them and the owners of lands, and that the awards thereupon were paid by the financial officers of the company, under the authority before mentioned.

The answer in the same connection says, “all which submissions when made, as these defendants Higham and Traver say, were made without the knowledge or direction of the board of directors of said company.” . As to this last allegation, it is proper to observe, that the company takes no such ground on its own behalf, and that the allegation after all only amounts to this, that when the submissions were made the company was ignorant of the fact.

Upon these allegations I do not see how it is possible not to hold that High am and Travel’ each had authority to submit such a question of price to arbitration, and this not upon the ground that having been held out by the company as possessing authority, they are estopped to deny it as to any one who has relied upon their acts, but upon the broader ground that it is impossible not to find that authority actually existed, where the agents have repeatedly pursued a particular course of conduct, and the company as often have ratified their acts by treating them just as if authority actually existed. (U. S. Bank v.

Dandridge, 12 Wh. 69.) As the submission, although executed under seal, is such an instrument as would be valid without seal, it can not be objected that Traver’s authority to execute it was not under seal. It is still the agreement of the company. (1 Selden, 229, Worrall v.

Munn.) The submission states that it is agreed between the company and Wood that for the purpose of appraising the value of the land which the company shall take and require of him for the road, and the damage he will sustain by reason of the road passing across his land, they submit to three arbitrators named to adjudge, determine and appraise the value of the land of Wood which will be required by the company for their road and the damage which Wood will sustain by reason of the road running across his land.' The award, after reciting that the parties had failed to agree upon the damages which the company should pay to Wood for so much of his farm as should be used dr injured by the running of the rail road across the farm, and had agreed to submit the question of such damages to the arbitrators, awards that the company pay him as his damages by reason of the rail road running across his farm, six thousand and fifty dollars.

The' indefiniteness of the specification of the ground intended to be covered by the damages awarded, if it would otherwise be a sufficient objection, is cured by the recital in the first part of the award, which shows that the arbitrators had in view, in their estimate of damages, both the value of the land and the injury to the residue of the farm by crossing it with the rail road. That these sums are not separately stated is not material.

All that the submission requires is that all the matters shall be decided on, but as it does not specify that there must be a separate assessment as to each, and the award itself shows that both matters are included, no objection can be made upon that ground. Omitting to notice the question whether in this suit the defendants are at liberty to attack the award for any matters not appearing upon its face, I proceed to consider the question whether corruption or partiality is made out against the arbitrators.

It is not denied that to authorize a court to interfere upon these grounds, they ought to be made out plainly. As to evidence tending to show corruption or partiality otherwise than as an inference from the amount of the award, I think it is not to be found in the case.

There is evidence that Wood called on Aldrich, afterwards one of the arbitrators, and spoke with him in reference to being a witness, and asked him to look at the route of the road through his farm, and although a nice sense of honor might have restrained him from even this much communication with one whom he proposed to select as an arbitrator, if indeed he-then had that intention) still there is nothing which begins to make out a case of partiality or corruption.

With respect to the amount of the award, although I may individually feel surprised that lands in Farmington should possess so high a value, yet, looking to the evidence, I can well understand how the arbitrators, without subjecting themselves to any charge of misconduct, might assess the damages at the high rate which in this case they have atvarded. A large number of witnesses swore to valuations as high, and some higher while a nearly equal number on the part of the defendants swore to a much smaller valuation.

Upon the evidence as it, stands, I do not think any court at the present day would set aside a verdict of the same amount as against the weight of evidence. Much less true should we regard the amount of damages as proof of corruption or partiality. Upon the whole matter I think the decree below should be affirmed. Mason, J., read an opinion in which he arrived at the same conclusions with Judge Johnson. Ruggles, Ch. J., Gardiner and Morse, JJ., concurred.

Willard, J., was in favor of a reversal of the decree of the vice chancellor, and a dismissal of the bill of complaint without prejudice to the plaintiff to enforce his award by an action at law. Taggart, J., was in favor of a reversal of the decree and the dismissal of the bill absolutely. Jewett, J., being a stockholder in the company gave no opinion. Decree affirmed.