Chouteau v. Missouri Pac. Ry. Co.
Decision Date | 28 May 1894 |
Citation | 30 S.W. 299,122 Mo. 375 |
Parties | CHOUTEAU v. MISSOURI PAC. RY. CO. |
Court | Missouri Supreme Court |
1. Under Laws 1849, p. 219, and Laws 1851, p. 272, amendatory thereof, authorizing a road to take title to land, the company takes, under a deed purporting to convey the fee, only the easement in the right of way. 22 S. W. 458, affirmed.
2. A widow has no dower in land which her husband, by an absolute deed, in which she did not join, conveyed for a right of way.
Action by Mary A. Chouteau against the Missouri Pacific Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed on division, and transferred to the court in banc. Affirmed.
On the dissent of GANTT, P. J., this cause was transferred to court in banc, and on re-argument BRACE and BURGESS, JJ., concur in affirming the judgment. BARCLAY, J., reaches the same result in a separate opinion. BLACK, C. J., and MACFARLANE and GANTT, JJ., dissent.
The appeal is from a judgment for defendant upon a state of facts, which is thus outlined by plaintiff's counsel in this court: We do not consider essential any further statement of the evidence than the above, in the view we take of the rules of law governing this litigation. We shall assume, without discussion, the preliminary proposition advanced by plaintiff, that the conveyance to Chouteau & Co. should be considered as though the grantee were Mr. Chouteau alone, treating the presence of the partnership name as immaterial to the present controversy. We then reach the real gist of the dispute, namely, whether, on the facts stated, plaintiff is entitled to be endowed of the said estate, formerly owned by her husband, but now in use by defendant as part of its railway track, under the title above described. The constitution and laws of Missouri contain some very definite directions touching the mode of exerting the sovereign power of eminent domain. Railways are declared public highways. Const. 1875, art. 12, § 14. The procedure by which such highways may be established is defined with considerable particularity. Among the provisions on this subject are the following, which, in substance, have been in force since 1866, viz.: Rev. St. 1889, § 2734. These statements furnish a statutory definition of the word "owners," which is found in that part of the same section requiring the owners of the land to be made parties defendant to the petition for condemnation. The same section, by very clear implication, sanctions the acquisition of private property for public use as part of a railway, by means of private treaty with the owner, supplementing, in this particular, the general power expressly conferred on such corporations for the same purpose by section 2543, Rev. St. 1889. Within the limitations of the organic law, it is undoubtedly competent for the legislative branch of the government to prescribe the mode and manner in which the sovereign power of eminent domain shall be exerted. Under the statute above quoted there is very little room to question that the inchoate right of a wife to dower would be extinguished by proper condemnation proceedings against her husband alone. And it has been recently held, by six judges of the court, in banc, after very thorough consideration, that a conveyance to the railway company of a right of way by the husband would defeat the inchoate right of dower of his wife in the subject-matter of that conveyance. Venable v. Railway Co. (1892) 112 Mo. 103, 20 S. W. 493. The facts of the case at bar, however, are not identical with those considered in the Venable Case, and it is claimed that the difference between the cases is such as to prevent the application of the...
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