Suit by Huston against the trustees of the Wabash and Erie canal, to recover for work and labor.
Answer by the defendants.
Reply by the plaintiff.
. And thereupon, by agreement of the parties, the matters in controversy in the suit were referred to the decision of Samuel B. Gookins and Samuel C. Willson, the latter selected by the plaintiff, and the former by the defendants; or, in the event of the refusal of said Gookins to serve, then to Elisha M. Huntington in his stead, and in the event of *277said Willson refusing to serve, then to ' William M. Franklin in his stead; and, in case of the disagreement of the aforesaid referees, says the entry of reference, they shall have the power to select a third, to whom said matters of difference shall be submitted, and who, in said event, shall aid jointly with them in making the report herein; and it is ordered, in the entry of reference, that said matters in controversy be referred as aforesaid, and that said referees meet at Highland, in Clay county, on Wednesday, the 28th instant, to hear the testimony and decide upon said matters; that they sit from day to day until the same is closed, and that they, or a majority of them, in case they select a third, report their decision to this Court at the next term, together with the facts found, and the conclusions of law separately, and this cause is continued till the next term, and said plaintiff has leave of Court to withdraw all the papers herein for the use of said referees.
At the next term, the referees filed their report as follows:
“We, Samuel C. Willson and Samuel B. Gookins, to whom was referred certain matters of controversy pending in the Circuit Court of the county of Hendricks, in the state of Indiana, between William R. Huston, plaintiff, and the board of trustees of the Wabash and Erie canal, defendants, having taken upon ourselves the burthen of said reference, and having heard the evidence of the parties and the arguments of counsel, do make this report upon the law and facts to us submitted, in manner following, to-wit:
“We find that the parties entered into a contract in writing, as set forth in the complaint, for clearing off the timber by the plaintiff from the Birch Creek reservoir of the defendants, a copy of which is annexed to the complaint; that the said contract was entered into fairly by both parties, and that the evidence does not show any fraud or mistake in the making of said contract, which requires it to be reformed.
“ We find, from the evidence, that the plaintiff entered in due time upon the work mentioned in said contract; *278that he prosecuted the same with reasonable diligence, and that he performed two-thirds of the work stipulated to be done, and that it was done in the manner directed by the defendants’ engineers.
“We find that the plaintiff was entitled, by the terms of the contract, to be paid for the work so done at the rate of 15 dollars per acre, and all the timber upon the land to be cleared.
“We find that the land to be cleared amounted to six hundred and ninety-five acres, and that the plaintiff was and is entitled to receive therefor in money, the sum of 10 dollars per acre. .
“We find that the timber upon said land, to which the plaintiff was entitled, was of the value of 9 dollars per acre, amounting to the sum of 6,255 dollars.'
“We find that the defendants caused or permitted the land which was to have been cleared, to be overflowed with water, by closing the gates, or permitting them to be and. to remain closed, by which, if they had been left open, the water would have passed off, and the said land to have been cleared would not have been overflowed; that this occurred about the 1st day of December, 1854, and that, in consequence of such overflow, the plaintiff was forced to abandon his work and the timber to which he was entitled; and that, if said land had not been so overflowed, the plaintiff would have had a reasonable time in which to complete the work, and secure the timber before the 1st day of February, 1855.
“We find the price of the work done, and the value of the timber, to be 13,205 dollars; that there has been paid to the plaintiff the sum of 7,120 dollars; and that there remains due from the defendants to the plaintiff the sum of 6,085 dollars, which sum, with the costs of this suit which have not heretofore been ordered to be paid by either party, we report to be paid by the defendants to the plaintiff.
“We find that on the 14th day of June, 1855, William J. Ball, the engineer named in the contract, made a final estimate, in which he estimated the work done by the plaintiff, at 6,130 dollars.
*279“Upon the questions of law arising on the foregoing facts, we are of opinion that the contract must,' so far as it can be followed, determine the measure of compensation. The value of the labor, according to the testimony of witnesses, is much greater than we have allowed; but we have not been governed by the testimony except in respect to the quantity of work done, and the value of the timber, the latter not being fixed by the contract. We have, therefore, taken the proportion of the price per acre of the work done, and the value of the timber, as the measure of damages.
“ The contract provides that the value of the work done under it should be determined by the estimate of the engineer; but whatever might have been the effect of that stipulation, if the work had been completed by the plaintiff, or left unperformed by his default, we are of the opinion that the defendants cannot claim the benefit of it when its completion has been prevented by their acts.
“ It is insisted by the defendants that the grounds were submerged by the rains that fell upon them, and a flood in Birch Creek, the waters being detained by the dam, and closing of the gates; and that it was the duty of the defendants, under the law, to detain the waters to supply the canal for purposes of navigation, and that the plaintiff entered into the contract with full knowledge of this legal obligation.
“ It is manifest that but for the closing of the gates, there was no such quantity of water as would have put a stop to the work. That event, therefore, must be referred to the closing of the gates. No doubt the law requires the trustees, so far as they have the means, to furnish the canal with water for purposes of navigation; but this general provision of law cannot be allowed to control, or authorize the breach of a positive contract.
“ It is urged that there is not sufficient evidence that the gates were closed by the defendants’ orders. There is, at least, abundant evidence that they were closed and kept closed with their consent and approval. In our opinion, they were as much bound to furnish the plaintiff with a *280clear field for his operations as one would be who had contracted with a mechanic to build a house, to furnish an eligible site for it. The nature of the work negatives the idea that it could be done under water. The plaintiff had no control of the gates. He was helpless in the premises; and if the defendants deemed it necessary to close them, we think they are bound to respond to the plaintiff for the injury he has sustained thereby.
S. C. Willson,
“ January 22, 1858. S. B. Gookins.”
This report was duly returned to the Court and filed.
The defendants appeared and filed thirteen causes why judgment should not be rendered upon the report. A part of them related to the action of the referees at the hearing, in regard to the admission and rejection of evidence, and to their conclusions as to what the evidence proved.
These objections were not based upon anything before the Court, and were properly disregarded. No exception was taken on the trial before the referees. If they erred upon any question of practice during the hearing, the party should have objected then and there, and had the objection incorporated, either by bill of exceptions, or statement of the referees, in their report. This is the plain import of the statute, and is held to be the proper practice in New York. Voorh. Supp. 167. The code declares that “the trial by referees is conducted in the same manner as a trial by the Court.” 2 R. S. p. 116, § 350. They may be required to report the facts found, and were thus required in this case. But that requirement does not extend to the evidence by which the facts found are proved; and it would have been ground for rejecting their report, if they had reported the evidence instead of the facts which it proved. This is the rule as to special verdicts and special findings by the Court. Sisson v. Barrett, 2 Comst. 406. The rule is the same as to special reports of referees. The statute, supra, and Johnson v. Whitlock, 3 Kern. 344.
The exceptions to the report based upon the application of the law to the facts found, were, we think, correctly overruled.
R. W. Thompson, for the board. J. M. ITanna, for the appellee (1). Per Curiam.The judgment is affirmed with 5 per cent, damages and costs.
Hanna, J., absent.