Chouteau v. Missouri Pac. Ry. Co.

• Decision Date: 14 March 1893
• Citation: 122 Mo. 375,22 S.W. 458
• Parties: CHOUTEAU v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

22 S.W. 458

122 Mo. 375

CHOUTEAU v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 14, 1893.

RAILROAD COMPANIES — RIGHT OF WAY — CONVEYANCES — DOWER.

1. Though Laws 1849, p. 219, incorporating a railroad, and Laws 1851, p. 272, amendatory thereof, authorize the road to take the fee-simple or other title to land, provide for its taking voluntary relinquishments of the right of way, and, in case of a refusal to relinquish the right of way, give the right to condemn it, in which proceedings an order shall be made vesting in the company "the fee-simple title of the land," still, the evident scope of the acts being simply to have the land either relinquished or taken for the purpose of a railroad, the company will take, even under a deed purporting to convey the fee, only the easement of a right of way.

2. A widow, not being dowable of an easement, would have no dower in the land which her husband, by an absolute deed, in which she did not join, conveyed for a right of way.

3. The charter, by providing for relinquishment of the right of way by the "owner," impliedly makes it unnecessary for the wife to join in the conveyance by reason of her inchoate right of dower, and it makes no difference that the husband does not convey directly to the railroad, but by mesne conveyances.

Gantt, P. J., dissenting.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Mary A. Chouteau against the Missouri Pacific Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, J.:

Action for assignment of dower. The plaintiff and Pierre M. Chouteau were married in 1849. He died in 1885, and during the marriage was seised in fee of the undivided one-half of some 20 lots situated in Kansas city, Mo. In June, 1850, he, being seised of the fee in the premises, conveyed, without warranty, his half interest in the property to Berenice F. Chouteau, but his wife did not join in the conveyance. In July, 1853, Berenice F. Chouteau conveyed the same to Joseph Guinotte, and in March, 1867, he in turn conveyed in fee the property in question, by general warranty deed without any conditions or restrictions, to the Pacific Railroad Company, of which the present defendant is the successor. The defendant company has occupied with its tracks the real estate in question since 1869. Demand for the assignment of dower was made by plaintiff, but refused by defendant.

The answer of the defendant, so far as necessary to quote it, is as follows: "Defendant admits that it is in possession of the said real estate, and claims to own the same. Defendant, further answering, says that by an act of the legislature of the state of Missouri, approved March 12, 1849, and by an act amendatory of said act, approved March 1, 1851, a railroad called the Pacific Railroad was incorporated, and authorized to construct, from any point in the city of St. Louis, by any route the said company may deem advantageous, to any point on the western line of said state which said company might select, and for that purpose might hold land, consisting of its right of way, and for turnouts, embankments, and excavations, necessary for the preservation of its road, and also for the erection and maintenance of depots, landing places, or wharves, engine houses, offices, or machine shops, warehouses, and wood and water stations. That by the provisions of said act, and the act amendatory thereof, the said Pacific Railroad was authorized to hold, use, and possess and enjoy the fee in the lands, as aforesaid, and take voluntary relinquishments of the right of way for said road and the necessary depots and water stations. That, pursuant to the power conferred by said acts, the said Pacific Railroad did locate and construct a railroad from the city of St. Louis, aforesaid, to the western boundary of the state of Missouri, which has been used and maintained as a railroad from the time of its construction to the present. That in the year 1867 the said Pacific Railroad obtained by purchase from the then owner the said real estate mentioned in the petition for its right of way, and for the use of said railroad as a common carrier of passengers and freight; and from the time of its construction to the present it has been used by the said railroad and its successor as a public highway, and as such still is so used. Defendant further avers that it became by purchase the successor of the said Pacific Railroad, and is entitled to and owns and is possessed of all its property, real and personal, rights and interests and franchises, of which said real estate, and the right to use the same, form a part. Wherefore defendant says that plaintiff is not entitled to the judgment as prayed in her petition," etc. To this answer a general denial was filed.

Section 1 of the act incorporating the Pacific Railroad contains this clause: "May take, hold, use, possess, and enjoy the fee-simple or other title in and to any real estate, and may sell and dispose of the same." Laws 1849, p. 219. Section 7 of the same act provides that "said company shall have full power to survey, mark, locate, and construct a railroad; * * * for that purpose may hold a strip of land not exceeding one hundred feet wide, and may also hold sufficient land for the construction of depots, warehouses, and water stations." Section 9 of the amendatory act of 1851 so far amends section 7, just quoted, and somewhat enlarges the privileges conferred by the original section, that, in addition to the 100-feet strip, the company could take more land, where necessary, for turnouts, embankments, or excavations, etc. Laws 1851, p. 272. And the original act gave the Pacific Railroad power as to the reception of voluntary relinquishments of the right of way of said road, etc., and, in case of a refusal to relinquish the right of way, gave the right to the company to condemn the same, etc., and provided that, upon the report of the commissioners being approved, an order should be made vesting in said company "the fee-simple title of the land" thus condemned. And by section 9 of the same act provision is made that, "if any owner of any tract of land through which said railroad shall pass shall refuse to relinquish the right of way," etc., then application shall be made to the judge of the circuit, and "notice of such application to judge shall be given to the owner of such land five days," etc. "If such owner be a nonresident, he may be served," etc. Section 12 of the original act provided that "said company shall have general power to use, manage, control, and enjoy said railroad." And no authority whatever was given said Pacific Railroad Company to acquire or hold real estate for any purpose other than those connected with the construction, maintenance, and operation of its railroad. And section 17 of the original act gave power to the state, at the end of a certain period, "to purchase said railroad." All the facts aforesaid were either admitted or else established on the trial. The defendant company then offered in evidence the acts already quoted, incorporating its predecessor. This was all the evidence offered, and thereupon the trial court gave judgment for the defendant, and the plaintiff appeals.

Ed. G. Taylor, for appellant. Elijah Robinson, for respondent.

SHERWOOD, J., (after stating the facts.)

Upon the foregoing facts the only question raised by the record is whether the plaintiff is dowable in the litigated property. Quite recently, in this court, the subject has been discussed at large whether a widow was entitled to dower in land which her husband alone had, for a consideration of one dollar, never paid, conveyed to a railroad company for a right of way; and though at first it was held in division No. 1 of this court that she was thus dowable, (Venable v. Railway Co., [Mo. Sup.] 19 S. W. Rep. 45,) yet, upon transfer of that cause to court in banc, it was determined, after an extensive examination of the authorities, and after full consideration, that she was not thus dowable. In this conclusion all the members of this court but one...