Baker v. Atchison, T. & S. F. R. Co.
Decision Date | 28 May 1894 |
Citation | 122 Mo. 396,30 S.W. 301 |
Court | Missouri Supreme Court |
Parties | BAKER v. ATCHISON, T. & S. F. R. CO. |
Action by one Baker against the Atchison, Topeka & Santa Fé Railroad Company. There was a judgment for plaintiff, and defendant appeals. Reversed.
Plaintiff, the widow of Melker Baker, on the 19th of March, 1891, brought this action for the assignment of dower in a certain strip of ground used by defendant corporation for its track, roadbed, and right of way. Melker Baker died in March, 1890. The answer admitted the incorporation of defendant, and that it had obtained such right of way, for the purposes of its railroad, over the land in controversy, from the legal owners thereof, and that it is now in possession of said strip of ground. The reply was a general denial. The only evidence before the court, sitting as a jury, consisted of the following agreed statement of facts: At the close of the case the defendant asked a declaration of law in the nature of a demurrer to the evidence, which was denied. Thereupon the court assessed the total present value of plaintiff's dower at $93, and the yearly value at $12.08; found that plaintiff was entitled to dower, and ordered and adjudged that defendant pay plaintiff the said sum of $12.08 annually, in lieu of dower. In consequence of this ruling, defendant has appealed to this court.
Gardiner Lathrop, L. F. Cottey, and S. W. Moore, for appellant. O. D. Jones, for respondent.
SHERWOOD, J. (after stating the facts).
Defendant relies on Venable v. Railway Co., 20 S. W. 493, 112 Mo. 103, as decisive of this case, and so it is; for it was there ruled that a conveyance of land by the owner to a railroad corporation for a right of way as effectually extinguished the dower right of his wife as if such right of way had been regularly condemned by the usual proceedings in a court of competent jurisdiction. One-half of the land which forms the subject of the present litigation was appropriated by the defendant corporation in the ordinary way. Afterwards, the other half of the strip used for a right of way was acquired by such corporation in 1887, through general warranty deeds made by the grantees of Jacob G. Baker, who in 1865 had acquired, by general warranty deed from Melker Baker, the land through which the railroad of the defendant company now runs. At that time, that is, in 1887, the general law in regard to the acquisition of lands for railroad purposes was then in force. Under that law it was competent for a railroad company to acquire land for such purposes in one of two ways: First, by voluntary relinquishment, as in the present instance; or, second, if the owner could not agree on the proper compensation to be made, by proceeding in the circuit court to condemn such land, and in such proceeding only the "owner" of the land was necessary to be made a party. Even when married women owned the land in fee, they were not required to be joined in the proceeding, but it was declared that "their husbands must be made parties defendant"; and the section in question, after setting forth that the owners of the land "shall be made parties defendant," concludes by declaring that: "It shall not be necessary to make any persons party defendant in respect to their ownership, unless they are either in actual possession of the premises to be affected, claiming title or have a title to the premises, appearing of record upon the proper records of the county." 1 Rev. St. 1879, § 892. The same statutory provision was in force long before 1879. Gen. St. 1865, p. 351, c. 66, § 1; Rev. St. 1855, cited in margin of the General Statutes. And this is the law to-day. Rev. St. 1889, § 2734. Under these statutory provisions, plaintiff, the wife of Melker Baker, could not have been made a party defendant to the condemnation proceedings against the legal owners of the land; there was no law for it, and at the time, even if she had been in court, her husband living, there were no scales and no measures provided whereby the value of her inchoate dower, with its remote and contingent possibilities, could have been weighed or estimated. Mills, Em. Dom. (2d Ed.) § 71, and cases cited. The owner of the land, whoever he is, represents the fee, and compensation to him appropriates the entire fee, and he is the only one to be looked to when the right of way is to be acquired, whether by condemnation or otherwise. There is, and there can be, no difference in this regard between dedication and condemnation. The former being voluntary and the latter compulsory, both are mere conduits through which flows the current of eminent domain. Venable's Case, supra. For the reasons given, the judgment should be reversed, and the petition dismissed.
This cause has been transferred to court in banc, and we reverse the judgment, and dismiss the petition; and in the foregoing opinion BRACE, BARCLAY, and BURGESS, JJ., concur. BLACK, C. J., and MACFARLANE and GANTT, JJ., dissent.
In my opinion the judgment in the Chouteau Case (30 S. W. 299) should be reversed, and the cause remanded, and the judgment in the Baker Case should be affirmed, for the reasons stated in the original opinion filed in the case of Venable v. Railway Co. (Mo. Sup.) 19 S. W. 45. It is possible cases in condemnation may arise where the inchoate right of dower should be protected in some proper form of proceeding; but the cases in hand do not present any such a question, and I have given to it no consideration, and therefore express no opinion on that subject.
Having concurred in the decision in Venable v. Railway Co., 20 S. W. 493, 112 Mo. 103, it occurred to me that the opinion of my learned brother in Chouteau v. Railway Co. (in Division No. 2) 122 Mo. 375, 22 S. W. 458, was not in harmony with the opinion in the Venable Case, and for that reason I dissented in division; not, however, without much hesitation. This case of Margaret Baker against the Atchison, Topeka & Santa Fé Railway Company subsequently arose, and involved some of the same questions, and I deemed it advisable to let it also abide the final judgment of the court in banc. As the Chouteau Case induced my dissent, I prefer to state first my reasons for so doing upon that record. When the Venable Case was decided in Division No. 1, by Judge Black (19 S. W. 45), all of the judges of that division, as then constituted, concurred, except Judge Barclay, who was absent. In that opinion Judge Black called attention to the case of Nye v. Railroad, 113 Mass. 277, as supporting his view that when the company did not resort to condemnation, but purchased by deed, the wife, not joining and relinquishing her dower, would not be barred. Afterwards, Sherwood, C. J., in his opinion for the court in banc, adverted to the Nye Case, and said: ...
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