The defendant contends *185-3that the agreement between the parties was in relation to an interest in land, being a right of way; and that the award, as well as the agreement itself, was therefore void by the statute of frauds. It is evident, from the testimony of the arbitrators, that the parties knew and admitted, at the *time of the agreement to submit the matter in difference, that the road was made over land, with the exception of a quarter of a mile, to which the plaintiff claimed no title; and that he had no permission from the owners of the land to make it. As it respects that part of the road, therefore, there was no interest in land in dispute. The plaintiff had made the road at a considerable expense, over the land of other persons, and without their permission. He of course was liable to be deprived of the use of it himself, whenever the owners of the land through which it ran thought proper. But it was undoubtedly an advantage, instead of an injury to the land through which it was made; and therefore it was highly improbable that the proprietors of the land would complain of, or obstruct it. The defendant knew all these circumstances; and with such knowledge, agreed to pay the plaintiff such sum as the individuals fixed upon between them should decide was right for the privilege of using the road. The evidence shows that the road was as convenient and necessary to the defendant as to the plaintiff. This agreement, from the very nature of the case, was nothing more, in the contemplation of the parties, than that the defendant should have the same right as the plaintiff had to use the road, upon paying what the arbitrators should adjudge for it. It was in the nature of compensation for the work and labor laid out by the plaintiff upon the road, the benefit of which the defendant wished to have.
It is no objection to the submission or the award, that the plaintiff had no legal right to the road himself, and of course none to prevent others from using it. (Shepherd v. Watrous, 3 Caines, 166. Kyd on Awards, 11. 1 Ld. Raym. 248.) In Shepherd v. Watrous, the plaintiff had brought an action of slander. At the time of the arrest of the defendant, the parties agreed to submit the matter in *186dispute to arbitrators: and the defendant was discharged. arbitrators awarded $100 to the plaintiff; and in an action to recover the sum awarded, the defendant offered to spow that the words for which the original action was commenced, and for speaking which the award was made *were not actionable. The evidence was held to be improper.
Where a matter is referred to arbitrators by the mere act of the parties, without being made a rule of court, it is no ground of objection to their award, in an action to enforce it, that it is against law. Jackson v. Ambler, 14 John. 105. Cranstown v. The Executors of Kenney, 9 John. 212. Kyd on Awards, 185, 287, 238.[1]
It being manifest, therefore, that, as to the greatest part of the road, the parties did not contemplate a legal right of way, it may fairly be intended that they did not as to the residue, which ran through the plaintiff’s land; but that the defendant was to contribute such portion of the expense of making the road, as the arbitrators under the circumstances of the case should think just; and be permitted to use the road in the same manner as the plaintiff did.
Hew trial granted.
See Waterman’s Am. Ch. Dig. vol. 1, tit. Award; N. Y. Dig. vol. 1, tit. Arbitration & Award.