Chouteau v. The Missouri Pacific Railway Company

• Citation: 22 S.W. 458,122 Mo. 375
• Parties: Chouteau, Appellant, v. The Missouri Pacific Railway Company
• Decision Date: 28 May 1894
• Court: Missouri Supreme Court

22 S.W. 458

122 Mo. 375

Chouteau, Appellant, v. The Missouri Pacific Railway Company

Supreme Court of Missouri

May 28, 1894

Appeal from Jackson Circuit Court. -- Hon James Gibson, Judge.

Action for assignment of dower. The plaintiff and Pierre M. Chouteau were married in 1849; he died in 1885, and during the marriage was seized in fee of the undivided one-half of some twenty lots situated in Kansas City, Missouri. In June, 1850 he, being seized 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, 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 the 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 land, 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 of 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 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 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, etc., etc., * * * and 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, so that in addition to the one hundred foot strip, the company could take more land where necessary for turnouts, embankments, or excavations, etc etc. Laws of 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., etc., and providing that upon the report of the commissions 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 said judge shall be given to the owner of such land five days," etc., * * * and, "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.

Affirmed.

Ed G. Taylor for appellant.

(1) First. By the deed of McDaniel to Guinotte, Magis & Co. and Pierre M. Chouteau & Co., April 26, 1850, plaintiff's husband became seized of the undivided half of the real estate in question. Arthur v. Weston, 22 Mo. 378; Keck v. Fisher, 58 Mo. 532; Rines v. Mansfield, 96 Mo. 394. Second. And with no further showing, plaintiff would have her dower rights. Willet v. Brown, 65 Mo. 138; Carlisle's Adm'rs v. Mulhern, 19 Mo. 56; Buchan v. Sumner, 2 Barb. Ch. 198; Campbell v. Campbell, 30 N.J.Eq. 415; Simpson v. Leech, 86 Ill. 286; Lang v. Waring, 25 Ala. 625; Brewer v. Browne, 68 Ala. 210; Foster's Appeal, 74 Pa. St. 391; Bopp v. Fox, 63 Ill. 540; Howard v. Priest, 5 Metc. 582; Wheatly v. Calhoun, 12 Leigh (Va.), 264; Shafer's App., 106 Pa. St. 49; Providence v. Bullock, 14 R. I. 353. Third. This, with proof of marriage and death of husband, made a prima facie case for plaintiff. Gentry v. Woodson, 10 Mo. 224; 2 Scribner on Dower, 212, et seq. (2) The real estate not having been acquired by defendant or its predecessor by the right of eminent domain, the fact of its being used as a right of way does not deprive plaintiff of her dower right. Venable v. Railroad, 19 S.W. 45; Nye v. Railroad, 113 Mass. 277; R. S. 1889, sec. 4525. (3) This case is to be distinguished from Venable v. Railroad, 112 Mo. 103. If the railroad acquired the land by purchase under a deed without restrictions, it took a fee simple title to the soil. Laws, 1849, sec. 1, p. 220; R. S. 1845, chap. 34, p. 231, sec. 1; G. S. 1865, chap. 62, p. 326, sec. 1; Co. v. Clark, 32 Mo. 305; Whitehead v. Vineyard, 50 Mo. 30; 4 Am. and Eng. Encyclopedia of Law, pp. 230-233; Amer. & F. Ch. U. v. Yount, 101 U.S. 352; Jones v. Habersham, 107 U.S. 174; Myers v. Croft, 13 Wall. (U.S.) 174. When land is sold to a railroad company with special conditions as to its use, if the company ceases to operate its road and forfeits its franchise, yet if it has conveyed its right of way before forfeiture declared, the purchaser takes a good title. Morrill v. Railroad, 96 Mo. 144.

Elijah Robinson for respondent.

(1) The courts of this country seem to have uniformly held whenever the question has come before them, that when lands are appropriated by the exercise of eminent domain, or what is equivalent to it, the dedication of land to public use, the dower of the wife is defeated. Gwinn v. City, 3 Ohio 24; 17 American Decisions, 576; Jackson v. Edwards, 7 p. 386; 1 Scribner on Dower, 550; Dillon on Municipal Corporations, 459; 1 Washburn Real Estate [4 Ed.] 269; Duncan v. Terre Haute, 85 Ind. 104. By the terms of the constitution, railroads are public highways. Sec. 14 art. 12, const. Mo. It follows necessarily that land taken by a railroad company for a right of way is appropriated to a public use. Upon principle, no good reason can be assigned why there should be any distinction between cases where land has been acquired by condemnation proceedings and by voluntary conveyance of the then owner. The special act of the legislature under which the Pacific Railway Company was organized, gave it no authority whatever to acquire or hold real estate for any purpose other than those connected with the construction, maintenance and operation of its railroad. Sess. Acts, 1849, secs. 7, 8, 9, p. 220; Acts, 1851, sec. 9, p. 268. The Missouri Pacific Railway Company was organized under the general railway law of the state contained in the general statutes of 1865 and acquired by purchase all of the property, rights and franchises of the Pacific Railway Co. Neither of these companies was authorized to take and hold real estate for any other purpose than those of the construction, maintenance and operation of its road; when they ceased to use it for such purposes it would revert to the original owner. ...