Tuttle v. B. & M. R. R.

49 Iowa 134

• Court: Supreme Court of Iowa
• Decided: June 17, 1878
• Status: Published

Opinion

Rothrock, Ch. J.

1. dower: right of way: husband and wife. The object of this action is to compel the defendant to purchase the alleged dower interest of the pla>in.tiEf in the right of way granted by the husband. We are united in the opinion that the action cannot be maintained. Plaintiff claims that because the defendant is in possession of the land under the grant of the husband, it is now liable to pay her the value of her alleged interest. If the husband had conveyed this land to a private person it would hardly be claimed this action would lie to compel the grantee to purchase the dower or distributive share of the widow. The case at bar is not different in principle from that supposed. It will be time enough for the plaintiff to assert her rights after her dower in the real estate of her deceased husband shall have been assigned and set off to her. It may be in such proceeding that her distributive share will be set off so as not to include the right of way, and at the same time taking the right of way into consideration. If so she would have no cause of complaint.

We do not determine the question whether a husband may grant a right of way to a railroad company free of any claim of his widow for dower in the land conveyed.

Affirmed.