sidered incidental to a contract, and necessary to carry it into effect. (Secs. 1655, 1656.) "Though it is not usual to create an easement over another person's land, yet it is otherwise when a separation of property takes place, and it is necessary that a certain part of it should be assigned to a person who cannot have the use of it without a right of way." (Lister v. Lister, 3 Younge & C. 540.)

3. The second point raised by the defendant is obviously based upon the theory that the proceeding for the partitionment of the property is a statutory arbitration. It cannot be questioned, under the facts, that the partitioners did not grant the parties an opportunity for a hearing or the right to adduce evidence. After they had determined upon the award, Gregg sent a letter to the defendant to attend at a certain meeting if she wished to be heard. But subsequently it was decided by Porter and Gregg to sign the award without further consideration. We do not think, however, that a hearing before the partitioners for the purpose of taking testimony and determining such questions as the parties might choose to raise, was anticipated by the parties, or embodied in the terms of their agreements. Porter stated that the question of hearing evidence was never suggested to him by anyone prior to the meeting referred to. Gregg testified to like effect. Rather the plain import of the contracts was that the three persons to be selected should go upon the land, make the necessary investigations, and otherwise inform themselves so they might be able to make a fair division of the property. There is, in fact, no provision in either of the agreements calling for any hearing, and we can conceive of no reason why, if the parties should choose to leave such matters wholly to the judgment of the three persons to be selected, they should not be permitted to do so. Such was the procedure which was followed in Casstevens v. Casstevens, 227 Ill. 547, [118 Am. St. Rep. 291, 81 N. E. 709], where three disinterested persons "sometimes in the record called 'arbitrators' and sometimes 'commissioners' went upon the land and decided how the property should be allotted. This was the procedure followed herein, and elaborate plans were prepared by the partitioners in their effort to arrive at a just and equal division. Each of them made personal inspection of the property. Porter and Gregg, who concurred in the award, prepared, or had prepared under their supervision, elaborate drawings showing the

location of the various parcels of land and indicating the proposed plan of partition. It is obvious that the parties, not contemplating a formal hearing, desired to leave the whole matter to the skill and unbiased judgment of the three persons who were to be selected to make the partition. Referring to a case of valuation or appraisement, it was said in California Annual Conf. of M. E. Church v. Seitz, 74 Cal. 287, [15 Pac. 839], "Certainly, if parties expressly say in their agreement that the 'arbitrators' are to determine the question upon their own skill and judgment without examining witnesses or hearing arguments, there could be nothing to prevent such agreement from being carried out. And if this can be expressed, it can in a proper case be implied." (See, also, Bottomley v. Ambler, 38 L. T., N. S., 545; Hall v. Norwalk Fire Ins. Co., 57 Conn. 105, [17 Atl. 356].) As is said in the first of the two cases last cited: "Considering the position and experience of the three gentlemen who were appointed, it may well be that they were perfectly qualified to decide the matter themselves. In such a case as this the arbitrators are not arbitrators in the sense in which arbitrators are appointed in an ordinary case, when they are appointed to ascertain facts and apply the law to the facts brought them on evidence." While these are cases of appraisement or valuation, there is no difference in principle between them and the case before us.

4. In support of the defendant's third main contention that the award should be vitiated because of the misconduct of the "arbitrators" two minor points are raised. It is contended that the partitioner Gregg did not sufficiently familiarize himself with the extent and character of the property to be partitioned, by personal investigation or inspection, but left the major part of this work to Harry R. Verrue, who was selected by him as an expert on land values. It appears that Verrue devoted much labor and time carefully considering the matter, personally going over the land, and otherwise determining the most advisable manner in which the partitionment could be made. He submitted his report to Gregg, who discussed the matter with his colleagues, and then the award was made. Gregg testified as to the employment of Verrue as follows: "The conclusion embodied in the award is one I reached on my own account. In reaching that conclusion I had employed Mr. Verrue. After visiting the property, I thought it would be well to have the opinion of a man who

was well versed in the valuations and conditions of the land in that county, and knowing that Mr. Verrue had considerable experience I engaged him for that purpose. I paid him personally." The court's findings on this point are, in part, as follows: "That said Warren R. Porter and Wellington Gregg, Jr., examined the property to be set apart and the property to be divided, and did devote such time to the performance of their duties as was reasonably necessary in order to arrive at an accurate, fair and just conclusion. . . . That said Warren R. Porter and Wellington Gregg, Jr., who signed said award, correctly informed themselves concerning the quantity, quality, improvements and values of said properties." It is noteworthy that Porter's plan of partitionment, prepared independently of that made by Gregg with Verrue's assistance, differed only in minor details from that of Gregg's. The award was based on these two plans, as Johnson's plan was found to be, in the opinion of the other two partitioners, unsatisfactory. The court also found "that the award actually made was the product of individual judgment and study of said Warren R. Porter and Wellington Gregg, Jr." It cannot be doubted that the partitioners, in the performance. of their duties, represented the parties in a fiduciary capacity. They were selected because of the confidence the parties reposed in their personal integrity, discretion, and ability, and were intrusted with special powers of agency. There is abundant reason why this trust should not be delegated. Yet it has been said: "But it is entirely proper for arbitrators, in a case requiring it, to obtain from disinterested persons of acknowledged skill such information and advice in reference to technical questions submitted to them, as may be necessary to enable them to come to correct conclusions, provided that the award is the result of their own judgment after obtaining such information." (1 Mechem on Agency, 2d ed., sec. 310. See, also, Simons v. Mills, 80 Cal. 118, [22 Pac. 25]; Phelps v. Harris, 101 U. S. 370, 383, [25 L. Ed. 855]; Emery v. Wase, 5 Ves. Jr. 846, [31 Eng. Rep. 889].) With equal force, similar comment may be made regarding partitioners in the situation presented here.

The other point made to the effect that the award is void is based upon the fact that both Porter and Gregg were guests of the plaintiff while they were on the property making their investigations, and that Porter, at least, discussed with her

the matter of the proposed partitionment prior to the time that the award was made. The partitioners both denied that either of them was in any manner influenced in making the award by any entertainment provided or courtesy shown by the plaintiff. This was the finding of the court. It is evident that such conduct on the part of the partitioners selected to divide the land in which the plaintiff was directly interested, should be scrutinized with care. But we think the facts here are insufficient to even raise the suggestion that the two persons were prejudiced against the defendant by the hospitality of the plaintiff, or that the fairness of their award was in any way affected by it. The finding of the court cannot therefore be disturbed. Were they to be regarded as arbitrators our conclusion might be otherwise in view of such authorities as Grosvenor v. Flint, 20 R. I. 21, [37 Atl. 304], and Robinson v. Shanks, 118 Ind. 125, [20 N. E. 713], for arbitrators are clothed with much of the dignity and attributes of courts, and must exercise their authority with the utmost propriety and caution until they have completely executed their trust. But partitioners do not exercise judicial functions in the same sense as arbitrators. They are, as we have seen, special agents of the parties, rather than quasi-judicial officers. What is said here, however, does not necessarily apply to referees appointed by a court to divide or partition property between the litigants before it. In the absence of proof of partiality, or circumstances from which partiality may be inferred, the award must be upheld.

The defendant contends that the findings of the court that the "arbitrators" were selected because of their skill and experience, and that they did inform themselves as to the quality, quantity, improvements, and values of the property, are not sustained by the evidence, but from what has been said, it is clear that the contention is without merit.

5. The final objection, that the plaintiff is not entitled to specific performance because there was no proof that the award was as to the defendant just and reasonable, is equally untenable. The evidence supporting the award is full and complete, consisting, as it does, not only of various maps, testimony by the partitioners and various experts, but in addition the court personally viewed the property. While there is some conflict in the evidence, and although it may be claimed that many of the facts testified to support the de

fendant's argument that the land awarded the plaintiff, notwithstanding the owelty, was worth more than that awarded the defendant, the court has found otherwise, and we cannot disturb that finding. The lower court, in fact, has resolved the mass of evidence in favor of the plaintiff, and has satisfied itself that the award was fair, just, and equitable. Moreover, the contracts, by their express terms, provide that the award shall be binding upon the parties, and it is admitted in the answer that the contracts themselves were just and reasonable. The provision reads: "The said parties further mutually covenant and agree each with and to the other that forthwith upon the making by the said arbitrators of the partition and award herein provided to be made by them, each will execute and deliver to the other a grant, bargain, and sale deed of the portion of the above-described lands so awarded to such other, and will receive from such other party a grant, bargain, and sale deed of the portion of the abovedescribed lands so awarded to her, and shall do such other things as shall be necessary and proper to carry into force and effect the said award. The award of the said arbitrators shall be in writing signed by said arbitrators or by a majority of them, and the determination of any two of said arbitrators upon any of the matters herein submitted to them shall be binding, and the said award may be enforced by either of the parties hereto by proper judicial proceedings." Inasmuch as there is no showing that the partition was unfairly made, or that the partitioners were guilty of fraud, the award cannot be inquired into for alleged mistakes in drawing conclusions from the facts before them, and the parties must be held to the terms of their agreements. (See Utah Construction Co. v. Western Pac. Ry. Co., 174 Cal. 156, [162 Pac. 631]; Dore v. Southern Pac. Co., 163 Cal. 182, 196, [124 Pac. 817].)

No other points require notice.
Judgment affirmed.

Henshaw, J., Lorigan, J., Melvin, J., and Angellotti, C. J., concurred.

SLOSS, J., Dissenting.-I dissent. Without regard to other points made, I think it should be held that the trial court erred in enforcing the award, made, as it was, by the