Appeal from' a judgment for defendant and from an order denying a new trial.
On October n, 1909, the plaintiff, party of the first part, and the defendant, party of the second -part, entered into an agreement in writing authorizing defendant to construct and maintain sewer mains for a distance of 800 feet across the S'. W. J4, section 15, township 103 north, range 62 west 5th E. M., the defendant paying plaintiff $1,750 therefor. The following are the paragraphs of the agreement material to the question before us, which, for convenience, we have numbered; the italics being ours:
“(4) Said second party further agrees to pay said first party such actual and reasonable damages as he may sustain by reason of the construction, maintenance, and operation of said sewer miains and the present and all future damages to said lands, provided said damages shall be found to exceed the sum of $1,-750 as hereinafter more particularly set forth; the damages to said land, if any,including the present and all future damages to said land to be ascertained by disinterested arbiters. * * *
“ ( 5) Said first party shall have the right to demand an arbitration of the damages occasioned to said land by reason of the construction, operation, and maintenance of said sewer mains and the outlets thereof at any time after April 1, 1910, by serving a written notice of his intention to arbitrate upon the mayor of said second party; but such arbitration must be demanded by-said ñrst party, if at all, within five years after the execution and delivery of this contract, and the three persons so chosen shall, whenever such arbitration is called for by said first party, determine and award the damages to said land, if any, occasioned by the construction, operation, and maintenance of said sewer mains and the outlets thereof; both parties to this agreement to be ■bound and concluded by the findings and award of said arbiters, which findings and award shall be made and returned in writing. * * *
*218“(7) It is further agreed by and between the parties hereto that said arbiters shall consider and determine the actual, and reasonable damages sustained by said land up to the time of said arbitration and permanently. * * *
“(8) It is further agreed by and between the parties hereto that, in the event of said arbiters finding and awarding damages to said first party by reason of the construction, maintenance, and operation of said sewer mains and the outlets thereof, in excess of $1,750 then the sum so found in excess of said $1,750 shall be paid to said first party by said second party within one year after the arbiters shall have made and returned their findings and award; but if the damages so found and awarded shall not amount to the sum of $1,750, then the $1,750 hereinbefore mentioned as paid to the said first party by said second party for the right and easement to enter upon said land and lay, construct, operate, and maintain said sewer mains and the outlets thereof over, in, and upon the same, shall be full compensation of said first party both for the easemlent so granted and the damages to said land by reason of the permanent construction and maintenance thereon and thereover the said sewer mains and the outlets thereof; that is to say, said ñrst party under and by virtue of the provisions of this contract shall not receive or be paid a sum under the provisions of this contract beyond the sum of $1,750, unless the award of the arbiters shall exceed' that sum, and then only as much more than $1,750 as the difference between the amount of such award and that sum; and upon its part the second party hereto agrees to pay said first party such actual and reasonable damages as his land may sustain by reason of the construction, operation, and maintenance of said sewer main and the outlets thereof, to be determined by arbitration as aforesaid, and said ñrst party upon his part agrees to accept said award in full satisfaction and discharge of all claims, actions, and demands whatsoever which he might have against said second party by reason of 'the construction, op-, eration and maintenance of said sewer mains, and the outlets thereof, in, upon, and across said land, * * *
(10) It is further agreed by and between said parties that in case said sewer mains shall create an open stream across said land to such an extent as to interfere with the use of the same by said first party for ordinary farming purposes, then said second pdrty *219shall properly tile said water across said land; but said first party shall not have the right to require said second party to tile said water across said land until after November i, 1910.”
This action was begun September T2, 1919, nearly ten years after the making of the agreement. 'Almong other allegations the complaint averred:
“That commencing about the vist day of March, 1914, and continuously thereafter, the discharge from said sewer mains has created an open stream across plaintiff’s said land to such an extent as to interfere with the use of the same by plaintiff for ordinary farming purposes, causing a damage to plaintiff annually of at least the sum of one hundred ($100) dollars, or in the aggregate sum Of five hundred ($500) dollars, the claim for which is still plaintiff’s property and is unpaid.
“That on or about the 1st of March, 1914, and since said time, plaintiff has caused demand to be made - of the said city of Mt. Vernon for the construction of a tile and properly tiling of said water across plaintiff’s said land, but the defendant has failed, neglected, and refused to do so.”
There was no allegation of a demand for an arbitration of damages within the five-year period or at all. After the first witness was sworn, the defendant objected to the introduction of any evidence, for that the complaint did not state a cause for action. The objection was sustained, and a verdict directed for defendant.
It will be seen that the fundamental question is whether the damages sued for, arising under paragraph 10 of the agreement, come under the arbitration clauses of the contract. If they do, then the complaint does not state a .cause of action, because it is not alleged that an arbitration w!as demanded within the five-year period. It is the contention of the plaintiff that paragraph 10, standing out by itself, did not come under the arbitration clauses, and that any damages arising under that paragraph were not barred by the five-year clause.
Construing the whole contract together, we are clearly of the opinion that it was the intention of the parties to provide, and that they did provide, but every possible species of damage, temporary or permanent, past, present, or future, was subject to the arbitration clauses of the agreement, and that after October 11, *2201914, no action of any kind for damages under the agreement could be brought. It was only “in case said sewer mains shall create an open stream across said land to such an extent as to interfere with the use of the same by said first party for ordinary farming purposes” that the defendant city was required to tile the land. It is clearly apparent, therefore, that the necessity for, or the right to require, the tiling was contingent upon results attending the operation and maintenance of the sewer. Inasmuch as all damages attendant upon the operation and maintenance of the sewer were concluded by the award, unless demand for arbitration was made within the five-year period, it seems entirely clear to us that the plaintiff is precluded from maintaining this action.
In our opinion the only effect of paragraph ID of the agreement was to enlarge the amount which the defendant would be required to expend in case an award of damages was made under arbitration; that is to say: If upon arbitration it was found that the sewter main created an open stream, across plaintiff’s land to such an extent as to interfere with the use of the land, and even though the total damages caused by the construction and maintenance of the sewer did not exceed the sum of $1,750', yet the defendant would be obligated to “properly tile said water across said land”; but when the five-year period elapsed, and no claim for arbitration was made, then all rights of plaintiff to a further recovery from defendant beyond the said sum of $1,750 ceased. To hold otherwise would nullify the italicized last portion of paragraph 8 and other parts of the agreement.
It being entirely clear to us that the present action was one to recover damages occasioned by the construction, maintenance, and operation of the sewer, the judgment and order appealed from are affirmed.