O'Flaherty v. Sutton

• Decision Date: 31 March 1872
• Citation: 49 Mo. 583
• Parties: ELIZA O'FLAHERTY, Appellant, v. JAMES C. SUTTON, Respondent.
• Court: Missouri Supreme Court

49 Mo. 583

ELIZA O'FLAHERTY, Appellant,

v.JAMES C. SUTTON, Respondent.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Bakewell & Farish, for appellant.

The dowress should have been permitted to show at what rate she could have rented the land had she been in possession from November, 1855, to date of injunction, with power to fence, clear and cultivate the land as lands in the neighborhood are used. And if she could have rented it in this way, lessee to pay taxes, for any annual sum on these terms, from year to year, her damages are the gross amount of this net annual rent for sixteen years that she has been deforced. She should have been allowed to show at what rate from year to year the land might have been leased with privilege to use it as the dowress in possession might have used it.

Neither the case of Reilly v. Bates, 40 Mo. 471, or Thomas v. Mallinckrodt, 43 Mo. 67, or of Reilly v. Clamorgan, 15 Mo. 331, furnish any ground for the proposition that in estimating damages in dower, if it appear that the slightest expenditure of time, labor or money be required to make the property productive, no damages can be recovered by the dowress.

In Riley v. Clamorgan, the Supreme Court decides that “the yearly value of the widow's dower is its net annual product, without the expenditure of money and labor by the heir or his assignees evidently, and as appears from the case itself. No property is productive without the expenditure of some money and labor upon it by some one at some time. In the case at bar we proposed, but were not allowed, to show what was the yearly value of the land in question, to rent it as it stood at the death of the husband and has ever since stood, giving to the lessee the right to use it as the dowress--as we have shown--might, without waste, use it herself. This is its net annual product without the expenditure of money or labor upon it by the dowress, or the heir or his assignee.

In Reilly v. Bates, 40 Mo. 471, the trial below proceeded on a theory which the Supreme Court condemns. That theory was, that an amount of money equal to one-third of the yearly value of the premises must be paid to the plaintiff for her damages, to be fixed by ascertaining what the yearly rent would be if the lot has been improved and used by defendant so as to make it reasonably productive.

The property in question was a vacant lot in the city. The Supreme Court held that the owner of an unimproved lot in the city, especially a trustee of a married woman, which was the case presented to them, was not bound to improve the lot to make it bring in a revenue--a proposition to which we cheerfully assent, but which does not affect the pending cause.

Thomas v. Mallinckrodt, 43 Mo. 67, was also a case of town lots. In that case the Supreme Court sustained the court below in instructing for the respondent, that “the jury should find from the evidence before them the yearly net value of the land without reference to improvements, and after...