Harris v. Kansas City
| Decision Date | 08 April 1922 |
| Citation | 239 S.W. 1077,293 Mo. 572 |
| Parties | ANNA WOOD HARRIS, Appellant, v. KANSAS CITY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas B. Buckner, Judge.
Reversed.
Joseph S. Rust for plaintiff.
(1) There may be dower in a public use, or, more properly, in land used as such, where the property out of which the use is claimed has not been acquired in one of the ways pointed out by the law or decisions. (2) Donnell took the fee subject to plaintiff's dower, as did also the Water Works Company and the city. The two latter did not take a mere easement and therefore the idea that there is no dower in an easement has no application here. Where a public service corporation takes by deed purporting to convey the fee, it holds and can sell and convey the fee unless there is something in its charter expressly excluding the right to acquire and hold the fee, as was not the case as to the Water Works Company and the city. Chambers v. St. Louis, 29 Mo. 543; Baker v. Ry., 122 Mo. 406 to 413; R. S. 1919, sec 9749; Note, Kansas City Charter, 1909, p. 98. (3) The widow is not deprived of her dower by the simple fact that the land has been taken and is being used for some public use. It must have been properly taken, in one of the modes pointed out by the law; and in some manner her interest must have been represented. Her interest cannot be said to have been represented, where her husband was sold out under a sheriff's deed, which expressly stated that it conveyed only his interest. (4) Dower is not a mere shadow. It is a substantial right and one which the courts protect with the greatest jealousy, resolving doubt in doubtful cases in favor of the widow. Blevins v. Smith, 104 Mo. 583. (5) The widow will not be deprived of her dower unless she is a party to or represented in the instrument transaction or proceeding under which her dower is claimed to have been extinguished. All the cases are based on that theory. Venable v Railway, 112 Mo. 124. (6) In the case of Choteau v. Railway, 122 Mo. 375, on which defendant seems chiefly to rely, the husband's deed purported to convey the entire title, and the court (improperly as we think) held that the husband in that, a public use case, would be presumed to have represented her and to have received compensation for her dower interest, but in this case that presumption cannot be entertained because the sheriff's deed only purported to convey the husband's interest. (7) This case is distinguished from the railroad right-of-way cases, because in those cases only a part of the land was taken, and dower could, as the court says, be allowed out of the remainder of the tract. (8) This case must also be distinguished from the railroad right-of-way cases, because the right of way required that particular strip of land, but it cannot be held that these particular lots were necessary to the city for a place to store old pipe, and therefore the question of the necessities of the public does not arise in this case. Some other lot would have answered the purposes of the water works company and the city. (9) This case must be distinguished from the Chouteau Case because it was held in that case that the railroad had only an easement and that there could be no dower in the easement. In case at bar the city has the fee subject only to this dower.
E. M. Harber, M. A. Fyke and Francis M. Hayward for defendant.
(1) The court erred in refusing defendant's instructions 1 and 2, which were to the effect that plaintiff under the undisputed evidence was not entitled to dower in the land in question. (a) The supplying to a city or town water is a public use. Lewis on Em. Dom., sec. 267; Burden v. Stein, 27 Ala. 104; Cummings v. Peters, 56 Cal. 593; Water Co. v. Forbes, 62 Cal. 182; Riche v. Bar Harbor Works, 75 Me. 91; Kane v. Mayor, 15 Md. 240; Wayland v. County Comm., 4 Gray, 500; Lumbard v. Stearns, 4 Cush. 60; Olmstead v. Morris Aqueduct, 46 N. J. L. 495, 47 N. J. L. 311; Waterworks Co. v. Bird, 130 N.Y. 249; Water Co. v. Stanley, 39 Hun. 424; Matter of New Rochelle, 46 Hun. 525; Witcher v. W. W. Co., 69 Hun. 619; State v. Eauclaire, 40 Wis. 533. (b) And there can be no dower in a public use. Chouteau v. Ry. Co., 122 Mo. 375; Baker v. Ry. Co., 122 Mo. 396; Venable v. Railroad, 112 Mo. 103; Christman v. Lindeman, 202 Mo. 615; Benton v. St. Louis, 217 Mo. 699; Moore v. Mayor, 8 N.Y. 110; Gwynne v. Cincinnati, 3 Ohio 24; Duncan v. City, 85 Ind. 104; Canty v. Latterner, 31 Minn. 239; Railroad v. Swinney, 38 Iowa 182.
This is a suit for dower. The husband of plaintiff, John S. Harris, was on June 7, 1873, seized in fee of the real estate in which she now claims dower. He died February 6, 1897.
On June 7, 1873, the interest of Harris in the land was sold under execution and conveyed by sheriff's deed to R. W. Donnell; on May 20, 1884, Donnell and wife conveyed by warranty deed to the National Water Works Company, a corporation of the State of New York (hereinafter referred to as the company). Under its charter and the laws of New York, the company was empowered to establish, construct and maintain water works in or adjacent to any city, town, or village in the United States, and to supply any such city, town or village, and the inhabitants thereof with water. Under the authority conferred by a special act of the Legislature passed in 1873 (Laws 1873, p. 286), Kansas City by ordinance, approved October 27, 1873, and duly ratified by popular vote, authorized the company to acquire and operate for a period of twenty years a system of waterworks in Kansas City, Missouri, for the purpose of furnishing its inhabitants water, and to erect and maintain all buildings and machinery necessary and suitable therefor, the city reserving the right to purchase the entire property constituting such waterworks. The ordinance was accepted by the company October 31, 1873.
Within due time the company acquired, constructed and put into operation waterworks conformably to the provisions of the ordinance. Under some arrangement with the owner, Donnell, it went into possession of the lot in which dower is now claimed, in 1880. The ground fronted 80 feet on Main Street, and extended back along Second Street 142 feet to the alley. There was a small two-story brick building on it and also a stable. The premises were enclosed with a fence. The stable was used by the company for its horses, the yard for storage of cast-iron pipes, and the brick building for a meter department and work shop. These uses of the property continued as long as the company owned it.
In accordance with the provisions of the ordinance heretofore referred to, and pursuant to a decree of the Circuit Court of the United States for the Western Division of the Western District of Missouri, the company, in 1895, sold and conveyed all of the property comprising its system of waterworks, including the lot deeded it by Donnell, to Kansas City. After the city acquired the waterworks it continued the use of the lot as an integral part of the system, and was so using it at the time of the trial, September, 1919. In 1905, the city erected thereon a substantial two-story brick building covering practically the whole of the lot, at a cost of approximately $ 40,000.
The ground without the improvements was valued by plaintiff's witnesses at $ 40,000, and the yearly rental at $ 2400; defendant's witnesses valued the land at from $ 11,360 to $ 14,200, and the annual rental at from $ 681 to $ 852.
Plaintiff demanded dower in the premises, as the widow of John S. Harris, deceased, April 1, 1897.
A jury was waived. The court found that plaintiff was entitled to dower in the land but not in the improvements, and that the reasonable yearly rental value, exclusive of improvements, was $ 1200. It thereupon adjudged that plaintiff recover for the detention of her dower the sum of $ 9,104.38 ($ 400 a year from the time of the demand to the date of the decree, without interest), and in addition thereto $ 400 per annum during her natural life, and that she have a lien on the premises to secure the payment thereof.
Both parties have appealed. Defendant contends that plaintiff is not entitled to dower at all. She insists that the trial court was in error: (1) in excluding the value of the improvements in admeasuring her dower out of the rents and profits; and (2) in not allowing her interest on annual payments -- equal to one-third of the yearly rental value of the premises -- from the times they should have been made, after demand of dower to the date of the decree, as a part of her damages for the detention.
I. The only question presented on defendant's appeal is whether plaintiff may assert a right of dower in land in use by defendant in connection with, and as a part of, its waterworks system.
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