I dissent. Without regard to other points made, I think it should be held that the trial court erred in enforcing the award, made, as it was, by the *Page 603 arbitrators without giving the defendant notice of any hearing, or the opportunity to be heard or to introduce evidence. It appears that Messrs. Porter, Johnson, and Gregg made independent examinations of the property, and prepared separate plans for partitioning the land. The differences between Porter's plan and that of Gregg were harmonized at conferences between them. All of this consumed a number of months, during which there was some informal discussion between counsel for the two parties with reference to the proposed partition, but no agreement was ever reached. Finally, on February 24, 1910, Mr. Gregg addressed a letter to the defendant, Miss Gonzalez, and Charles W. Slack, Esq., her attorney, informing them, on behalf of his colleagues and himself, that a meeting of the arbitrators would be held on the twenty-fifth day of February, 1910, at his, Gregg's office. It is interesting to note that at this time the arbitrators entertained the view that the granting to the parties of a hearing was, if not a matter of strict legal right, at least within the proprieties of the situation. Mr. Gregg's letter concluded with these words: "If you desire to be heard further in the said matter, please be present 11 o'clock." At the time and place specified, Mr. Slack appeared on behalf of Miss Gonzalez, stated, in effect, that she was dissatisfied with the proposed partition, and requested an opportunity to present evidence to show that a division of the lands on the basis which had been suggested would not be equal, and would be unjust to Miss Gonzalez. Notwithstanding this request, made in answer to their own invitation, Messrs. Porter and Gregg determined that no evidence should be heard, and proceeded at once to sign the award which had been prepared.
If the agreement of July 19th provided for an arbitration, it is plain — and this is conceded by the majority opinion — that the arbitrators could not render a valid award without giving to each of the parties notice of a hearing, and an opportunity to present evidence. These rights are of the very essence of an arbitration. (Curtis v. Sacramento, 64 Cal. 102, [28 P. 108]; 5 Cor. Jur. 84.) "There are two time-honored rules in relation to arbitrators — one that courts will not enforce an agreement to submit to arbitration, or in other words, that it can be revoked; and the other that arbitrators must give notice of their sessions so as to afford the parties a right to be heard. These rules rest upon the same idea, *Page 604 viz., that an arbitration is a substitute for proceedings in court. It being considered against sound policy to allow parties to deprive themselves of their right of resort to the courts, agreements to that effect are not binding so long as they are executory; but if the parties choose to resort to other tribunals, such tribunals are held to the more important rules which govern courts in their proceedings:" (California Annual Conf. of M. E. Church v. Seitz, 74 Cal. 287, 291, [15 P. 839].) Not every difference of opinion between parties is, however, a proper subject for arbitration. A contract by which the value of property is, for the purposes of the contract, to be fixed by designated persons, is not a submission to arbitration. (California Annual Conf. of M. E.Church v. Seitz, supra; Dore v. Southern Pacific Co., 163 Cal. 182, [124 P. 817].) But the agreement in the present case goes far beyond this. The question submitted for determination was not merely one of valuation or appraisement. It involved the partition of lands owned in common, and the allotment, to each of the parties, of a portion of the land in severalty. The result of the arbitration was to divest each party of title to a part of the premises, and to vest sole ownership thereof in the other. Such partition is a proper subject for the determination of a court, and we see no reason for holding that when it is committed to the determination of persons selected by the parties, the resulting proceeding does not constitute a true arbitration.
It is said that there was no controversy between the parties, and therefore no basis for a submission to arbitration. The court found that when the parties entered into the second agreement, "no difference or dispute existed between them, nor had they themselves made any attempt to divide the properties therein mentioned between themselves." No doubt the existence of a controversy or dispute is a prerequisite to a submission to arbitration. (5 Cor. Jur. 27.) But this does not mean that actual litigation between the parties shall have been commenced or threatened, or that they must have engaged in an acrimonious quarrel. It is enough if either of them asserts a right which requires judicial ascertainment and enforcement. For the purposes of the rule, the right of cotenants, who have not agreed upon a division of their property, to have the same partitioned presents a sufficient controversy to furnish a basis for submission and award. (Brown *Page 605 v. Wheeler, 17 Conn. 345, [44 Am. Dec. 550].) Section 1281 of the Code of Civil Procedure provides that "persons capable of contracting may submit to arbitration any controversy which might be the subject of a civil action between them. . . ." If a submission to arbitration has its essential basis in a controversy, so, too, does a civil action between parties presuppose a controversy which furnishes the occasion for setting the judicial power in motion. The "controversy" contemplated by section 1281 is one which "might be the subject of a civil action." A complete case for partition by civil action is made out when "several cotenants hold and are in possession of real property," and any one of them desires a partition. (Code Civ. Proc., sec. 752; De Uprey v. De Uprey,27 Cal. 329, [87 Am. Dec. 81].) Each cotenant is entitled to demand partition as a matter of right. (Freeman's Cotenancy and Partition, sec. 424.) It is not necessary that the other cotenants or any of them shall have objected to a partition. It is enough that the parties in interest have not agreed upon a division between themselves. (See Frankfurth v. Steinmeyer,113 Wis. 195, 203, [89 N.W. 148].) That they had not so agreed in this case is apparent from the very fact of their entering into the agreement for submission.
Section 1281 of the Code of Civil Procedure, after excluding from arbitration questions of title to real property in fee or for life, goes on to provide that "this qualification does not include questions relating merely to the partition or boundaries of real property." This is, in effect, a declaration that the partition of real property is a proper subject for arbitration. And such appears to be the view taken by the supreme court of Wisconsin under a similar statute. (McCord v. Flynn, 111 Wis. 78, [86 N.W. 668]; Frankfurth v.Steinmeyer, 113 Wis. 195, [89 N.W. 148].)
The right to notice and hearing may no doubt be waived. But I find nothing in the conduct of the appellant, or in the language of her agreement, which can support a finding of such waiver. The agreement itself is silent on the subject. If the parties contracted for a submission to arbitration, properly so called, the right to notice and hearing are implied unless expressly waived by the terms of the submission. (Curtis v. Sacramento, 64 Cal. 102, 106, [28 P. 108].) "A right so valuable to the parties and so essential to the accomplishment of justice, should not, in any case where the language, upon *Page 606 which the claim of waiver is based, is doubtful or equivocal, be held to have been surrendered. Nothing short of plain and clear words should be considered sufficient for that purpose." (Hart v. Kennedy, 47 N.J. Eq. 51, 61, [20 A. 29]; 5 Cor. Jur. 84.)
For these reasons, I believe that the decree enforcing the award should not be sustained.