LEVEZEY v. GORGAS
4 U.S. 71

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U.S. Supreme Court

LEVEZEY v. GORGAS, 4 U.S. 71 (1799)

4 U.S. 71 (Dall.)

Levezey et al.
v.
Gorgas et al.

High Court of Errors and Appeals of Pennsylvania.

July Session, 1799

IN error from the Supreme Court. A declaration was filed in the Court below by the plaintiffs in error, against the defendants, in which they set forth, 'that on the _____ of _____ 1790, and thence continually, they have been seised in their desmesne as of fee of and in a certain water grist mill with the appurtenances, upon Wissahicon creek in Philadelphia county; that the defendants all the time aforesaid and still are in possession of a certain other water grist mill with the appurtenances upon the same creek, and below the mill of the plaintiffs; and that the defendants, intending to injure the plaintiffs, had raised their dam

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higher, to wit _____ feet higher than the same had ever been before raised, and thereby unjustly penned back, pent up, and obstructed the water of the said creek between the said mills, insomuch that the water of the creek during all the time aforesaid overflowed and greatly damaged, spoiled, injured, and broke to pieces the said mill of the plaintiffs, to their great damage in their said hereditary estate, and whereby they were forced to expend a large sum, &c. in repairing, &c.' The defendants pleaded 'not guilty, with leave to alter, and give the special matter in evidence:' and afterwards 'by ageement of attornies in writing filed, all matters in variance between the parties, are referred to William Ward Burrows, Alexander Martin, John Holmes and George Eyre, who shall have full power to award whether any and what sum shall be paid to the plaintiff by the defendant, and vice versa, to settle their respective claims to the waters of the Wissahicon creek, by fixing what shall be the heighth of the defendant's dam, and whether any alteration shall be made therein, and to direct articles to be executed accordingly: the report of any three to be conclusive.' All the referees concurred in filing a report, by which it was found and awarded, '1st. That the defendants their heirs and assigns shall and may erect and complete the mill-dam to their mill now belonging of a heighth corresponding with the bottom of the hole now bored in a certain rock standing and being on the north-east side of Wissahicon creek, near the said mill. And the said dam of the heighth aforesaid shall and may forever hereafter keep and maintain. And if the said defendants, their heirs and assigns, or either, or any of them, shall and do wilfully, or negligently, cause or suffer the said dam to be raised higher than is hereinafter mentioned, then and in such case, it shall be lawful for the plaintiffs their heirs and assigns, to give a written notice to the defendants their heirs and assigns, requiring them to reduce the said dam to its proper level, herein before directed: and if the defendants their heirs and assigns, shall neglect or refuse so to do, for thirty days after such notice, the plaintiffs their heirs and assigns may summon three freeholders, being indifferent men, to view and examine the same; and if the said freeholders shall be of opinion that the plaintiff's, &c. are injured by the said dam being carried up higher than the level herein directed, they shall give a written notice to the defendants, &c. requiring them to reduce the said dam to its proper level; and if within thirty days thereafter, the defendants, &c. shall not reduce the said dam to its level aforesaid, the plaintiffs, &c. may lawfully enter upon the said dam, and abate and prostrate the same. 2d. In consideration of the foregoing privileges the referees order and award, that the defendants, &c. holding the said mill, shall yearly, and every year, pay 10l. to the plaintiffs, &c. the first payment to be made on the 31st

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of March 1797. And also that the defendants do on the 31st of March next pay to the plaintiffs 50l., which shall be in full of all claims and demands on the part of the plaintiffs against the defendants, on account of the said mill dam. Lastly: the referees award and direct that the said parties respectively, shall mutually execute and deliver proper deeds and instruments in writing, for the granting, assuring, and confirming, as well the said privileges hereby awarded to the said defendants, their heirs and assigns, as the said annual payment to the plaintiffs, &c.: and it is awarded and directed that the parties divide the costs.' On the 21st of March 1796, 'the report of the referees was read and confirmed, and judgment nisi.' On the 22d of March, exceptions to the report were filed; but after hearing witnesses, and the argument of counsel, on the 14th of September 1796, 'the report of the referees and judgment were confirmed': and thereupon the present writ of error was brought. On arguing the cause in this Court, Lewis, for the plaintiff in error, took the following exceptions to the record: 1st. That the referees had exceeded the authority given by the submission of the parties, inasmuch as they have directed the plaintiffs to sell to the defendants, a certain privilege, and have awarded an annual sum, to be paid by the defendants to the plaintiffs, as the price of the privilege, which were not matters in variance between the parties, nor included in the rule of reference. 2d. That the referees have directed deeds to be executed by the plaintiffs, for assuring to the defendants a new right, not for settling the old rights of the parties (which are alone contemplated in the submission) to the waters of the Wissahicon. 3d. That the referees have established a new tribunal for deciding the future controversies of the parties; a power which is inconsistent with the general principles of law, and not supported by the agreement, or submission, of the parties. 4th. That the referees have awarded the parties to divide the costs. 5th. That the judgment in confirmation of the report being entered generally, part of it cannot be affirmed, and part reversed. Carth. 235. 2 Bac. Abr. 227. The objections were answered by Rawle, for the defendants in error, to the following effect: 1st. That the submission was general, and shows the real points in controversy between the parties: and on the principles of the law of awards in Pennsylvania, the present award ought to be enforced. 1 Dall. Rep. 364. 314. 2d. That the report, as far as it awards the payment of money, comes strictly within the act of assembly; but on the other two

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objects of the report (the grant of the privilege, and the execution of deeds to assure it) there could be no judgment, and they remain in the record as rules of Court, to be enforced by attachment, of which no writ of error lies. 3 vol. Penn. Laws, 97. 2 Bac. Abr. 215. 3 Inst. 31. 3d. That the present record is informally sent up; but it may either be reduced to form by the Court, or they may satisfy their consciences by awarding a certiorari; which, however, the defendants in error have no right to issue. 2 Bac. Abr. 204, 5. 5 Com. Dig. 166. 4th. That supposing the present record, in all its parts, to be a subject for a writ of error, it is a maxim, that no one can assign that for error, which is for his own advantage. 2 Bac. Abr. 220. Thus, the referees find that the defendants are entitled to the privilege, on paying for it; but by way of further security to the plaintiffs, and for their benefit, a summary examination by freeholders is provided, to restrain subsequent encroachments. This is obligatory on the defendants; but it is optional with the plaintiffs, who may have recourse to the ordinary legal remedies. 5th. That the report of the referees does not give any thing new to the defendants. The subject in dispute and submitted, was, whether the defendants had a right to raise their dam; and the referees find that they have such a right, by an old continued compact, paying an equivalent. 6th. That the referees, had power to make an award touching real estate. Kid. 34. 133. 136. On the last day of the session, the COURT mentioned, that they had not been able to form a decisive and satisfactory opinion on the authorities and arguments in this cause; and that, therefore, they would keep it under advisement till the adjourned session. They added, that if the plaintiff in error was to be considered as restrained from pursuing the ordinary remedies of the law, and confined to the remedy prescribed in the report, in case of any future nuisance, or encroachment upon his rights, it was their present sentiment, that the referees had exceeded their authority. The point, however, was not made in the argument before the Supreme Court; and merits further consideration. Cur. adv. vult. At an adjourned session, held on the 17th of January 1800, the judges delivered their opinions, seriatim, but concurred in this general result:

By the COURT: The agreement of the parties constituted the referees, the exclusive judges of the subject submitted to their decision. It gave them, however, no power to delegate their trust and authority to others; nor to erect a new and arbitrary

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tribunal, to determine future controversies. If the first set of referees could proceed in this way, the set empowered by them, might exercise a similar authority; and so ad infinitum, compel the parties, without their consent, or controul, to resort to a tribunal unknown to our laws. We are, therefore, unanimously of opinion, that the referees exceeded their authority; and as their report, or award, was confirmed, generally, by the Supreme Court, the judgment of that Court must, also, be generally, reversed.

Judgment reversed.

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