Venable v. the Wabash Western Railway Company

• Decision Date: 14 November 1893
• Parties: Venable, Appellant, v. The Wabash Western Railway Company
• Court: Missouri Supreme Court

20 S.W. 493

112 Mo. 103

Venable, Appellant, v. The Wabash Western Railway Company

Supreme Court of Missouri

November 14, 1893

Appeal from Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.

The plaintiff by her petition herein claims dower in a strip of ground one hundred feet wide and two hundred and seventy-five rods long, which the defendant company occupies as a right of way, and as incident to such claim she asks damages because of being deforced of her dower; this is, in substance, the first count of her petition.

The second count of the petition seeks to recover damages by reason of the railroad of the defendant dividing the farm into two irregular parcels, thereby impairing its value, and by reason of embankments thrown up in the building of the railroad, whereby about fifty acres of said land were rendered wholly untillable and worthless.

The cause was tried on the following agreed statement of facts:

"The plaintiff is the widow of Jacob M. Venable, to whom she was lawfully married in 1846, and with whom she lived as his wife until his death in 1882.

"During the coverture of plaintiff, on the nineteenth day of October 1865, her husband, then lawfully seized in fee of the lands described in the petition, executed, acknowledged and delivered to the North Missouri Railroad Company a deed, now duly recorded, conveying to said company 'the right of way for the construction, operation and use of the west branch of the North Missouri railroad over and through any land owned by him in the county of Chariton, in said state the same being situated in sections 10, 11, 14 and 15 township 53, range 19, the said right of way to have the extent of one hundred feet in width through said land, or as much more as may be necessary for the actual construction and operation of said railroad, according to the nature of the ground,' upon the following condition: 'To have and to hold the same unto the said North Missouri Railroad Company, their successors and assigns, as long as the same shall be required and used for the purposes of a railroad and no longer, the said right of way to be confined to that part of said land south of the farm on the same.'

"The plaintiff never joined her husband in the execution of said conveyance, and has not since released or relinquished her right of dower in said land.

"The North Missouri Railroad Company was at that time, and prior to the execution of said deed, a railroad corporation duly organized and chartered under the laws of the state of Missouri, and as such then had lawful authority to construct a railroad from St. Louis to Kansas City, through Chariton county. The North Missouri Railroad Company had a right to acquire a right of way for its railroad either by voluntary conveyance or by condemnation. The conveyance above described was the only one executed by plaintiff's husband, and no condemnation proceedings were ever instituted for acquiring a right of way over the said lands. Immediately after the execution and delivery of said deed, the North Missouri railroad took possession of the strip of land described in the petition and constructed and operated thereon a line of railway. The defendant has succeeded to all the right, title, interest and estate of the said North Missouri Railroad Company in said lands, as fully and completely as the same was originally conveyed by plaintiff's husband to said North Missouri Railroad Company. The defendant is a railroad corporation, organized under the laws of Missouri on the thirtieth day of September, 1887, and has since that date been in the exclusive possession of a strip of land described in the petition, and has maintained thereon the roadbed and embankments constructed by said North Missouri Railroad Company, and operated its trains thereon. The consideration of $ 1 recited in the deed was never paid, nor were any damages ever paid to plaintiff's husband for the injury, if any, done the remainder of said lands by the construction and maintenance of its said line of railway.

"Plaintiff's husband was seized in fee, and was in possession of all of said lands described in the petition at the time of his death, except the strip now held and used by defendant, as aforesaid. Said lands constitute one farm or plantation, whereon his dwelling-house was situated, and where he resided with his family at the time of his death. Plaintiff, his widow, by herself and her tenants, has ever since remained in possession of said dwelling-house and farm. No dower has ever been assigned said widow in any of the lands described in the petition.

"The embankment complained of in the second count of plaintiff's petition was constructed by the North Missouri Railroad Company in the early part of 1868, more than twenty years before the institution of this suit. Said embankment was, when so first constructed, and has ever since remained, a permanent structure, and no change has ever been made in said embankment since its first construction aforesaid."

This action was instituted by the widow in 1888.

Affirmed.

A. W. Mullins and T. T. Elliott with Crawley & Son for appellant.

(1) By ignoring and failing to plead to the first count of the petition, defendant admitted the truth of its allegations. Revised Statutes, 1889, secs. 2073, 2107; Bliss on Code Pleading, sec. 345. (2) The plaintiff was entitled to recover her dower on the admitted facts. No act, deed or conveyance of the husband, and no laches or default on his part, shall deprive the wife of her dower. Revised Statutes, 1879, sec. 2197; 2 Scribner on Dower, pp. 581, 583, and note 603, et seq.; Tiedeman on Real Property, secs. 131, 132; 1 Sharswood & Budd's Leading Cases on Real Property, 332; Nye v. Railroad, 113 Mass. 277; Grady v. McCorkle, 57 Mo. 172; Williams v. Courtney, 77 Mo. 587; Davis v. Green, 102 Mo. 170; Hall v. Smith, 103 Mo. 289. (3) The respondent stands in the shoes of its predecessor, the North Missouri Railroad Company, as to the property in question. Bradley v. Railroad, 91 Mo. 493. (4) Appellant is entitled to possession of the entire plantation in right of her quarantine; and being so in possession may, of course, maintain her action against defendant for injury thereto affecting her rights. Revised Statutes, 1879, sec. 2205; Orrick v. Pratt, 34 Mo. 226; Miller v. Talley, 48 Mo. 503; Brown v. Moore, 74 Mo. 633; Roberts v. Nelson, 86 Mo. 21; Allen v. Railroad, 84 Mo. 646. (5) And defendant is liable not only for the value of plaintiff's interest in the strip of land wrongfully entered upon and appropriated, but also for the injury done plaintiff's possessory rights in the adjacent lands, by reason of the wrongful maintenance of defendant's embankments, notwithstanding such embankments were originally constructed by the North Missouri Railroad Company. Dickson v. Railroad, 71 Mo. 575; Wayland v. Railroad, 75 Mo. 548; Culver v. Railroad, 38 Mo.App. 130; George v. Railroad, 40 Mo.App. 433. (6) Where the entry is made under the deed of the husband, the possession relied upon to defeat the widow's rights must have become openly hostile and adverse since the husband's decease, and must have continued for ten years before the commencement of her action. Sedgwick & Wait on Trial of Titles to Land [2 Ed.] secs. 749-752, p. 599, et seq.; Farris v. Coleman, 103 Mo. 352; Handlan v. McManus, 100 Mo. 124; Smith v. Patterson, 95 Mo. 525; Beard v. Hale, 95 Mo. 16; Robinson v. Ware, 94 Mo. 678; Moore v. Harris, 91 Mo. 616; Dyer v. Witten, 89 Mo. 91; Mueller v. Kaessman, 84 Mo. 318.

F. W. Lehmann and George S. Grover for respondent.

(1) Plaintiff's right of dower in her husband's estate is subject to the right of way granted by her husband to the North Missouri Railroad Company. 1 Scribner on Dower, p. 577; 1 Washburn on Real Property, 220; Dillon on Municipal Corporations, sec. 459; Mills on Eminent Domain, sec. 70; Moore v. Mayer, 8 N.Y. 110; Gwynne v. City, 3 Ohio 24; Railroad v. Swinney, 38 Iowa 182; Duncan v. City, 85 Ind. 104; Walker v. Deaver, 79 Mo. 664; Zimmerman v. Snowden, 88 Mo. 218; Hargis v. Railroad, 100 Mo. 210; Cory v. Railroad, 100 Mo. 282; Sedgwick on Constitutional & Statutory Law, 216; Scanlan v. Childs, 33 Wis. 663; Packard v. Richardson, 17 Mass. 143. Coke upon Littleton, 31b; Park on Dower, 121; 1 Scribner on Dower, 577; Walker on American Law [6 Ed.] 366; American Law Register, 12 N. S. 496; Southern Law Review, 5 N. S. 1; Railroad v. Bailey, 3 Ore. 178; New Central Co. v. George's, etc., Co., 37 Md. 562; Swan v. Williams, 2 Mich. 427; Charter of the North Mo. Railroad, sec. 8; Wabash Case, 118 U.S. 586; Olcott v. Supervisors, 16 Wall. 594. (2) As the statement of facts conclusively shows that the plaintiff has a homestead interest in the estate described in the petition, and as this record fails to show any proceeding to set off the homestead before instituting this suit, she is not entitled to recover in this action, because, until the homestead is set off, she is not entitled to dower in the land, and before it is set off it cannot be determined whether she has any dower or not. Revised Statutes, 1889, sec. 5440. (3) The plaintiff's cause of action on account of the injury to her land caused by the embankment erected by the defendant's predecessor is barred by the statute of limitations. James v. Railroad, 83 Mo. 567; Bird v. Railroad, 30 Mo.App. 305.

Sherwood, C. J. Black, J., dissents.

OPINION

In Banc.

Sherwood C. J.

I. The first and the controlling question the record presents is whether the plaintiff is entitled to demand dower in the defendant company's right of way.

Touching the validity of such a demand in the circumstances similar to those here related, an author of recognized authority says "First. In the time of Henry III. the great charter of...