This was an action of debt, commenced by warrant (127) 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 *Page 100 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 1848 at $23, for the year 1849 at $23, for the year 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 1 January, 1848, and so for each year." Signed and sealed by the arbitrators, 7 January, 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 Jacocks and William Williams for the overflowing of a certain tract of land by our millpond, this 4 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 recover 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 nonsuit was entered, from which the plaintiff appealed. The power of an arbitrator is derived only from the agreement of the parties as expressed in the (133) submission, and their award must be made in strict accordance with it, and must neither go beyond nor omit anything embraced within it. The first inquiry 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 4 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 lawsuit. 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 Cullifer by Charles Jacock and William Williams for the overflowing of a certain tract of land by their millpond. We understand the parties to mean that the arbitrators should assess the damages then sustained, to wit, 4 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 *Page 101 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 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 4 July, 1847, and that the award will well bear that construction. When the words of an award are ambiguous, such a construction ought to be (134) given them as will best coincide with the apparent 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 1847." 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 4 July, 1847, and 1 January, 1848.
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 act of Assembly, and that such was the view taken by them. If this be so, the award is not the less defective. Section 13, ch. 74, Rev. St., directs the jury to "make up their verdict as to the sum which the petitioner is entitled to receive as an annual compensation for the damages sustained," etc., "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 anaudita querela or some other action, set aside the judgment for the residue of the damages. Gilbert v. Jones, 18 N.C. 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 should the dam be raised, nor for the defendants (135) if they should have taken it down the day after the award was made. The award, therefore, in this view of it, is *Page 102 defective. It does not embrace all 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.
Cited: Metcalf v. Guthrie, 94 N.C. 451.