Appeal from the District Court of the Fifth Judicial District, Tuolumne County.

The action was for damages alleged to have been sustained by the plaintiffs by reason of the diversion by the defendants of certain streams of water flowing from springs upon the plaintiffs’ land.

At the trial defendants offered in evidence an award of five arbitrators, to whom had been submitted to decide upon the conflicting claims of the parties to this suit, in relation to the streams of water which are the subject of controversy in this action. It appeared that a bond had been given to abide by the decision of the arbitrators, and that the award by them had been acquiesced in by both parties for a series of years.

Defendants counsel requested the Court to instruct the jury “ that if two parties enter into a sealed agreement to abide the decision of per. sons chosen by each in reference to a subject in dispute between them, and such persons decide such subject in dispute with the knowledge and approbation of both parties, and they afterwards act upon such decision, each party is estopped by it ”

The Court refused the instruction and charged the jury “ that the agreement to arbitrate did not estop the plaintiffs from maintaining their action, for the reason that it was not made in accordance with the terms of the statute; but that the jury might consider it in mitigation of damages, and if they believed from the evidence that both parties acquiesced in it and had complied with its terms, then they should find for the defendants; but if they believed from the evidence that neither party acquiesced in it or complied with the terms, then they should find such damages, as from the evidence," they should deem the plaintiffs had sustained.”

The jury found a verdict for the plaintiffs. Defendants moved for a new trial; which motion the Court overruled. Defendants appealed.

Jarvis

Lead Opinion