Venable v. Wabash Western Ry. Co.

• Decision Date: 14 November 1892
• Citation: 20 S.W. 493,112 Mo. 103
• Parties: VENABLE v. WABASH WESTERN RY. CO.
• Court: Missouri Supreme Court

20 S.W. 493

112 Mo. 103

VENABLE v. WABASH WESTERN RY. CO.

Supreme Court of Missouri.

November 14, 1892.

DOWER — LAND DEDICATED TO PUBLIC USE — OPINION OF LEGAL PROFESSION.

1. A conveyance to a railroad company of a right of way through the grantor's land, and of as much land adjacent to such right of way as may be necessary for the construction of the railroad, is a dedication to the public use, and the grantor's widow is not entitled to dower in the land so conveyed, though she did not join in the deed. 19 S. W. Rep. 45, reversed.

2. The opinion of the legal profession on a question, given and acted on for a great many years, without litigation, is evidence of what the law on such question is.

Black, J., dissenting.

In banc. Appeal from circuit court, Chariton county; GAVON D. BURGESS, Judge.

Action for dower by Dosha J. Venable against the Wabash Western Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

The plaintiff by her petition herein claims dower in a strip of ground 100 feet wide and 275 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 irregular parcels, thereby impairing its value, and by reason of embankments thrown up in the building of the railroad, whereby about 50 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 19th day of October, 1865, her husband, then lawfully seised 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 situate in sections ten, fourteen, eleven, and fifteen, township fifty-three, range nineteen, the said right of way to have the extent of one hundred feet in width through said lands, 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 the 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 30th 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 one dollar 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 seised 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."

A. W. Mullens, Thos. Elliott, and Crawley & Son, for appellant. F. W. Lehmann and Geo. S. Grover, for respondent.

SHERWOOD, C. J., (after stating the facts.)

1. 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 circumstances similar to those here related, an author of recognized authority says: "(1) In the time of Henry III., the Great Charter of King John was so amended as to withhold from the widow the privilege of quarantine in the castle of her husband. `This,' says Lord Coke, `is intended of a castle that is warlike, and maintained for the necessary defense of the realm, and not for a castle in name maintained for habitation of the owner.' Although the language of the Great Charter appears to be limited, in this particular, to the quarantine of the widow, it is nevertheless laid down, by the same author abovequoted, that a castle necessary to the public defense is not subject to dower. `Of a castle that is maintained for the necessary defense of the realm, a woman shall not be endowed, because it ought not to be divided, and the public shall be preferred before the private. But of a castle that is only maintained for the private use and habitation of the owner, a woman shall be endowed.' Here 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. (2) The English Reports furnish no instance in which the applicability of this principle to the case of lands taken for public uses is considered, but it appears to have been assumed in the time of Mr. Park that by such appropriation the right of dower was divested. `It should also be noticed,' he says, `as the prevailing impression of the profession, that under enabling acts, such as those of the West India and London Dock Companies, the Grand Junction Canal, and the improvements at Temple Bar, Snow Hill, and Smithfield, the wife's title of dower will be bound by the alienation of the husband, although the title is taken by way of conveyance only, and the purchase money is not invested in other lands or paid into the bank. This is understood to have been the opinion of several gentlemen of high professional reputation, in answer to the requisition of an eminent conveyancer, who, on the behalf of the corporation of London, had called for fines from vendors whose wives had titles of dower, and the writer believes that the subsequent practice in the great majority of cases has been to dispense with fines.' In the United States, however, this question, in different forms, has undergone judical inquiry on several occasions." 1 Scrib. Dower, (2d Ed.) pp. 577, 578. And, after mentioning several adjudications in this country, sustaining the position that the widow is not dowable in such circumstances, he concludes his observations by saying: "The rule fairly deducible from these authorities would seem to exclude dower in all cases where lands are dedicated to the public for a legitimate purpose, and the public have acquired a right to the enjoyment thereof, or where they are lawfully appropriated in virtue of the right of eminent domain. The reasoning of the courts appears to apply as well where lands are granted and used for public parks, public libraries, or other public use of a like character, as where they are devoted to the purposes of a market place or a public highway; and it is difficult to discern any good ground for a distinction between the two classes of cases. In some of the states burial grounds are expressly exempted from dower by statute." 1 Scrib. Dower, (2d Ed.) pp. 577, 578, 582.

When discussing the same question, the learned author of the work on Real Property gives expression to conforming views, thus: "One mode in which dower may be defeated remains to be mentioned, and that is by the exercise of eminent domain during the life of the husband, or, what is equivalent to it,...