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

30 S.W. 299

122 Mo. 375

CHOUTEAU v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

May 28, 1894.

RAILROAD COMPANIES — DEED OF RIGHT OF WAY — TITLE ACQUIRED — DOWER.

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.

Black, C. J., and Macfarlane and Gantt, JJ., dissenting.

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.

BARCLAY, J. (concurring).

The appeal is from a judgment for defendant upon a state of facts, which is thus outlined by plaintiff's counsel in this court: "This is a suit for dower in an undivided half of certain lots in Kansas City, Missouri, by the widow of Pierre M. Chouteau. Plaintiff was married to Chouteau, December 20, 1849. On April 26, 1850, a tract of land including said lots was sold and conveyed by the then owner, in undivided halves, to grantees described in the deed as `to Guinotte, Magis & Company one undivided half, and Pierre M. Chouteau & Co. the other undivided half.' Afterwards (in 1850) Pierre M. Chouteau, by an ordinary warranty deed, in his own name, and without being joined by his wife, conveyed said real estate to Berenice F. Chouteau, and she afterwards (in 1853) conveyed to Joseph Guinotte; and in 1867 Joseph Guinotte, by general warranty deed, without conditions as to use, conveyed the lots in controversy to the Pacific Railroad, and the said railroad and its successor, the present defendant, have, since that time, held the same, and occupied them with their tracks. The plaintiff's husband died in August, 1885, and in 1887 she made demand on the defendant for her dower in said real estate, and, the same being refused, brought this suit." 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.: "If the proceedings seek to affect the lands of persons under guardianship, the guardians must be made parties defendant; if the land of married women, their husbands must be made parties defendant. * * * 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." 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...