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 waterworksDower. system.
That the use to which the defendant is devoting the land is a public use is not open to question. [Lewis on Eminent Domain, sec. 267; Wayland v. County Commissioners, 70 Mass. 500; Pocantico Water Works Co. v. Bird, 130 N.Y.Public Use: 249.] Before its acquisition by defendant it hadLand Devoted been appropriated to a similar use by itsto: Waterworks. predecessor, the National Water Works Company. In recognition of the fact that the supplying of a city, town,
or village with water is a public use, the Legislature in 1881 passed an act (Laws 1881, p. 45) authorizing any corporation, company or individual, proposing to so engage in supplying water, "to acquire by condemnation sufficient lands upon which to build works for the pumping, storage, distribution and management of water."
The doctrine is firmly established in this State, as in most other jurisdictions, that the inchoate right of dower is suspended, or extinguished, in lands appropriated, according to the forms of law, to the uses of the public. [Benton v. St. Louis, 217 Mo. 687; Chouteau v. Railroad, 122 Mo. 375; Baker v. Railroad, 122 Mo. 396; Venable v. Railroad, 112 Mo. 103.] And it makes no difference whether the public use arises by prescription, by dedication through a deed or acts in pais
coupled with acceptance, by condemnation, or by a simple conveyance followed by an actual appropriation to such use. The principles giving rise to the rule, as applied in this State, have been so fully set forth in the cases just cited that a discussion of them now would be a work of supererogation.
Plaintiff contends that the case at bar is distinguishable on the facts from any of those cited, in this: The Act of 1881 authorized the taking only of an easement in lands to be used by a corporation in supplying cities with water, whereas, the National Water Works Company acquired from Donnell by open deed, without restriction of any kind as to use, a fee in the land, encumbered only with plaintiff's inchoate dower; that it could, therefore, have abandoned the use of it as a part of its waterworks at any time, and sold it, and conveyed the fee, just as it could any other private holding, and that defendant by its deed from the company acquired a like title. It is undoubtedly true that the company through its deed from Donnell acquired the fee and that it in turn conveyed the fee to defendant, and it may be that neither of them could have acquired more than an easement by condemnation. But, even so, it is not apparent how such facts can be of any avail to plaintiff in her claim of a present right
of dower. The nature of the title acquired successively by the company and by the defendant is important only with respect to its sufficiency to authorize each of them to appropriate the land to the use it did. Each had the right under the title it obtained to devote the land to a public use, and during the continuance of such use dower can not be assigned therein — that is, dower that was inchoate at the time of the commencement of the use. The rule is very clearly set forth in the separate opinion of BARCLAY, J., in Chouteau v. Railroad, 122 Mo. l.c. 393, 395:
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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 waterworksDower. system.
That the use to which the defendant is devoting the land is a public use is not open to question. [Lewis on Eminent Domain, sec. 267; Wayland v. County Commissioners, 70 Mass. 500; Pocantico Water Works Co. v. Bird, 130 N.Y.Public Use: 249.] Before its acquisition by defendant it hadLand Devoted been appropriated to a similar use by itsto: Waterworks. predecessor, the National Water Works Company. In recognition of the fact that the supplying of a city, town,
or village with water is a public use, the Legislature in 1881 passed an act (Laws 1881, p. 45) authorizing any corporation, company or individual, proposing to so engage in supplying water, "to acquire by condemnation sufficient lands upon which to build works for the pumping, storage, distribution and management of water."
The doctrine is firmly established in this State, as in most other jurisdictions, that the inchoate right of dower is suspended, or extinguished, in lands appropriated, according to the forms of law, to the uses of the public. [Benton v. St. Louis, 217 Mo. 687; Chouteau v. Railroad, 122 Mo. 375; Baker v. Railroad, 122 Mo. 396; Venable v. Railroad, 112 Mo. 103.] And it makes no difference whether the public use arises by prescription, by dedication through a deed or acts in pais
coupled with acceptance, by condemnation, or by a simple conveyance followed by an actual appropriation to such use. The principles giving rise to the rule, as applied in this State, have been so fully set forth in the cases just cited that a discussion of them now would be a work of supererogation.
Plaintiff contends that the case at bar is distinguishable on the facts from any of those cited, in this: The Act of 1881 authorized the taking only of an easement in lands to be used by a corporation in supplying cities with water, whereas, the National Water Works Company acquired from Donnell by open deed, without restriction of any kind as to use, a fee in the land, encumbered only with plaintiff's inchoate dower; that it could, therefore, have abandoned the use of it as a part of its waterworks at any time, and sold it, and conveyed the fee, just as it could any other private holding, and that defendant by its deed from the company acquired a like title. It is undoubtedly true that the company through its deed from Donnell acquired the fee and that it in turn conveyed the fee to defendant, and it may be that neither of them could have acquired more than an easement by condemnation. But, even so, it is not apparent how such facts can be of any avail to plaintiff in her claim of a present right
of dower. The nature of the title acquired successively by the company and by the defendant is important only with respect to its sufficiency to authorize each of them to appropriate the land to the use it did. Each had the right under the title it obtained to devote the land to a public use, and during the continuance of such use dower can not be assigned therein — that is, dower that was inchoate at the time of the commencement of the use. The rule is very clearly set forth in the separate opinion of BARCLAY, J., in Chouteau v. Railroad, 122 Mo. l.c. 393, 395:
"It is wholly immaterial what may be the estate of the corporation invoking the power of eminent domain. So long as the property is lawfully in use for public purposes, no right of dower can be asserted to interfere with the paramount right of the public.
"We conclude that, under the provisions of our statutes, it is plainly apparent that no right of dower, such as plaintiff claims, can be asserted against property duly acquired by deed, or by condemnation, and actually devoted to public use; and that such a regulation of, or limitation upon, inchoate right of dower is valid, and not in violation of any provision of the organic law."
It follows that as the land in question, since its conveyance by Donnell, has been, and now is, rightfully devoted to a public use, plaintiff cannot demand dower therein.
Where a fee in land is authorized to be taken, and is taken, under the power of eminent domain, the inchoate right of dower, therein, if any, is extinguished. Where merely an easement is taken, it ought to be held, on principle, that such right of dower is not abrogated, but merely suspended during the period of the servitude. And where a municipal or public service corporation secures a fee by deed, when under its charter it could acquire by condemnation only an easement, a right of inchoate dower in the land should not be any more adversely affected thereby than had the use only been taken under the power of eminent domain. This, because the right of
dower yields only to the extent necessary for the full exercise of the paramount public right; and the extent to which a given public use requires the extinguishment of an owner's title, and private rights incident thereto, is solely for the Legislature to determine, and its intention in that respect is to be deduced from the act authorizing condemnation. [Brooklyn Park Comm. v. Armstrong, 45 N.Y. 234.]
Whether the National Water Works Company, under the Act of 1881, was authorized to acquire by condemnation the fee in land necessary for it to take and use in connection with the operation of the waterworks at Kansas City, whether such power is conferred on defendant under its charter, and whether plaintiff's inchoate right of dower has been extinguished, or is merely suspended during the time that the land in which it is claimed is, or shall be, devoted to public use, are questions, however, which we do not decide, because not arising on the record before us. We premise this much because it is asserted by plaintiff in her brief that the land has been sold and conveyed by defendant and appropriated to private uses since the trial of this cause below.
It follows from the views herein expressed that the judgment of the circuit court will have to be reversed. It is so ordered.
In view of the disposition made of the case on defendant's appeal, the questions raised on plaintiff's appeal have become merely academic. Her appeal is therefore dismissed. Small, C.,
concurs; Brown, C., absent.