Venable v. Wabash W. Ry. Co.
| Decision Date | 22 February 1892 |
| Citation | 19 S.W. 45 |
| Parties | Venable v. Wabash W. Ry. Co. |
| Court | Missouri Supreme Court |
Appeal from circuit court, Chariton county; G. D. Burgess, Judge.
Action by Dosha J. Venable against the Wabash Western Railway Company. Judgment for defendant. Plaintiff appeals. Reversed.
A. W Mullins, Thos. Y. Elliott, and Crawley & Son, for appellant.
F. W Lehman and Geo. S. Grover, for respondent.
This is an action in two counts. By the first the plaintiff seeks to recover dower in a strip of land 100 feet wide by 275 rods in length, occupied by the defendant company as a right of way, and damages for deforcement. The second count will be noticed hereafter. The case was submitted to the court without a jury, upon the following agreed facts: Plaintiff married Jacob M. Venable in 1846, and resided with him until his death, in October, 1882. He became the owner of 180 acres of land during the marriage, and resided thereon at the time of his death. Plaintiff has continued to reside on the farm since his death, and dower has never been assigned to her in any part thereof. Jacob M. Venable, long prior to his death, and in 1865, executed a deed to the North Missouri Railroad Company, a corporation organized under the laws of this state, and thereby conveyed to the company the strip of land now in question, over and across the said 180 acres, to have and to hold the same to the company "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 continued to that part of said land south of the farm on same." The deed recites a consideration of one dollar, but no consideration was paid therefor. The plaintiff did not sign the deed, and she is not therein mentioned as a party thereto. The North Missouri Company took possession under this deed at or about the date thereof, and in 1868 constructed embankments; and the strip of land has been used as a railroad right of way since that date. The present defendant succeeeded to all the rights of the North Missouri Railroad Company.
1. Under our laws dower attaches to all lands whereof the husband was seised at any time during the marriage, and the deed of the husband alone does not "prejudice the right and interest of the wife," or bar her of her dower. The question here is whether a conveyance of a right of way to a railroad company is to be deemed out of these statutory enactments. The law is thus laid down by Lord Coke: "Here," says Scribner, "we see shadowed forth the principle upon which the courts at a later day have proceeded, in holding the inchoate right of dower extinguished in lands appropriated, according to the forms of law, to the uses of the public." 1 Scrib. Dower, (2d Ed.) 576. In Gwynne v. Cincinnati, 3 Ohio, 24, the husband of the plaintiff, and other property owners, agreed to open up a street, with a space therein for a market, and accordingly the city opened the street, and erected a market-house, and thereafter the widow petitioned for dower. It was held she was not entitled to dower in the land occupied by the market-house; that the case then in hand could not be distinguished from those where property had been condemned for public use; that the uses created by the dedication would not admit of the exertion of private rights and consequently all private rights must be suspended or abrogated. A claim for dower in streets, it was held, could not be admitted, for the same reason that it was not allowed to a castle in England. In Moore v. Mayor, 8 N.Y. 110, the city acquired land for a market place by condemning the same under an act of the legislature. The corporation, it was held, acquired an absolute title to the land, divested of any inchoate right of dower existing in the wife, though she was not made a party to the proceedings to condemn. We also find it laid down in many of our best text-books that the widow is not dowable in lands which have been appropriated to public use by the exercise of the right of eminent domain during the life of the husband, or in lands which he dedicated to uses purely public, as for markets, streets, parks, and the like. 2 Dill. Mun. Corp. (4th Ed.) § 594; Washb. Real Prop. (5th Ed.) top pp. 279, 280; Mills, Em. Dom. (2d Ed.) § 71; 1 Scrib. Dower, (2d Ed.) p. 582. See, also, Duncan v. City of Terre Haute, 85 Ind. 104; French v. Lord, 69 Me. 537. Under our law the wife’s inchoate dower is a valuable interest, and it is an interest in lands, for so the statute treats it. It is contingent, so that it cannot be valued; and for this reason she is not a necessary party to a proceeding to condemn. In such a proceeding her husband represents her, and a final order in such cases divests her of her inchoate dower. Such has ever been the well-understood law in this state, and it is not to be now questioned. We may also concede that a widow cannot have dower in land dedicated to and accepted by the public for public uses, as for roads, streets, markets, etc. But all this does not dispose of the question now in hand. Here the husband by his own deed conveyed the property to a railroad company, a private corporation, for a right of way. The company, not the public, acquired the interest conveyed. It is true the company carries on a public business, but it carries it on for private gain, and the property acquired in the prosecution of the business is private, not public, property. The case is unlike that of a dedication of land to public use for...
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