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says Lord Coke, is intended of a castle tbat is war. thorizes the husband's land to be taken in in ritum, and
like, and maintained for the necessary defense of the compensation therefor made for the fee of the same.
realın, and not for a castle in name maintained for hab- as, for instance, in those States where the mill-owner
itation of the owner.' Although the language of the is authorized to flow lands which he does not own. At
Great Charter appears to be limited in this particular common law a widow cannot hare dower of a castle,
to the quarantine of the widow, it is nevertheless laid since, among other reason18, she could not put it 10
down by the same author above quoted, that a castle profitable 118e: and the same reasoning would apply 118
necessary to the public defense is not subject to dower. to lands, though granted by the husband, wbich liare
Of a castle that is maintained for the necessary de- been appropriated to public uses, such as cemeteries,
fense of the realm, a woman shall not be endowed, be- public parks and the like." 1 Washb. Real Prop.
cause it ought not to be divided, and the public shall (5th ed.) 279.
be preferred before the private. But of a castle that is Trenting of the same point Judge Dillon says: "As
only inaintained for the private use and habitation of dower is not the result of contract, but is a positive
the owner, a woman shall be endowed. Here we see legislative institution, it is constitutionally competent
shadowed forth the principle upon which the courts, for the Legislature to authorize lands to be taken by a
at a later day, have proceeded, in holding the in- municipal corporation for a market, street or other
choate right of dower extinguished in lands appro- public age, upon an appraisement and payment of tbeir
priated, according to the forms of law, to the uses of value to the husband, the holder of the fee, and such
the public. (2) The Euglish reports furnish no in- taking and payment will confer an absolute title di.
stance in which the applicability of this principle to vested of any inchoate right of dower. Nor is a widow
the case of lands taken for public uses is considered, dowable in lands dedicated by her husband in his life-
but it appears to have been assumed in the time of Mr. time to the public, where the dedication is complete,
Park that by such appropriation the right of dower or has been accepted and acted upon by the municipal
was divested. It should also be noticed,' he says, 'as authorities." 2 Mun. Corp. (4th ed.), $ 594.
the prevailing impression of the profession, that under In a recent work of pronounced merit it is said: “A
enabling acts, such as those of the West Sudia and inarried woman cannot claim dower in lands dedi.
London Duck Companies, the Grand Junction Canal cated by her husband to the public. It is settled that
and the improvements at Temple Bar, Snow Hill and dower is created by law, and does not exist by virtue
Smithfield the wife's title of dower will be bound by of contract, and that it is therefore within the power
the alienation of the husband, although the title is of the Legislature to change or destroy the rights of a
taken by way of conveyance only, and the purchase- married woman at any time before they have vested.
money is not invested in other lands or paid into the This rule prevails where dower has been abolished and
bank. This is understood to bave been the opinion of an estate in fee substituted. Dedication of land to
several gentlemen of high professional reputation, in public use is placed upon the same general principle as
answer to the requisition of an eminent conveyancer, that on which rests the right of eminent domain, and
who, on the behalf of the corporation of London, had it is held that the property interests of the married
called for fines from vendors whose wives had titles of woman must yield to public necessity.” Elliott Roads
dower, and the writer believes that the subsequent & S. 108.
practice in the great majority of cases has been lo dis- Another author says: “An inchoate right of dower
penise with fines.' In the United States however this may be taken during the life-time of the busbajid, on
question, in different forms, has undergone judicial in- / giving full compensation to the husband. The incho-
quiry on several occasions." 1 Scrib. Dower (211 ed.), ate right of dower is not such an interest as is capable
577, 578.

of assessment. During the life of the husband he repAnd after mentioning several adjudications in this resented the fee, and compensation to him appropri. country sustaining the position that the widow is not ated the fee. It has been well held, that when an esdowable in such circumstances, he concludes his ob- tate is taken before the decease of the husband, the servations by saying: “The rule fairly deducible from value of the widow's inchoate right of dower in deemed these authorities would seem to exclude dower in all too uncertain to admit of compensation; that the huscases where lands are dedicated to the public for a le- band must be regarded as the owner of the entire esgitimate purpose, and the public have acquired a right tate, and that as such he is entitled to full compensato the enjoyment thereof, or where they are lawfulls tion for it." Mills Eu. Dom. (2d ed.), $ 71. appropriated in virtue of the rightof eminent domain. It may not be unprofitable to make some extracts The reasoning of the court appears to apply as well from, and citations of, the adjudicated cases giving where lands are granted and used for public parks, support to the positions already quoted from tbe texto public libraries, or other public use of a like character, books. Thus in Moore v. Mayor, 8 N. Y. 110, by virtue as where they are devoted to the purposes of a market of a statute of New York, commissioners were applace or a public bighway ; and it is difficult to discerni pointed to assess damages to “the respective owners, any good ground for a distinction between the two lessees, parties and pers0118, respectively, entitled unto classes of cases. In some of the States burial grounds or interested in the lands,” etc. The wife of one of the are expressly exempted from dower by statute.” 1 owners, 1100 baving been made a party in the condemScrib. Dower (2d ed.), 577, 578, 582.

nation proceedings, after the death of her husband When discussing the same question, the learued au. preferred a claim for dower against the city. The court shorof the work on Real Property gives expression to held: “In the case under consideration the land was conforming views, thus: “One mode in which dower taken against the consent of the husband, by an act may be dedicated remains to be mentioned, and tbat of sovereignty, for the public benefit. The only peris by the exercise of eminent domain during the life of son owning and representing the fee was compeusated the husband, or what is equivalent to it, dedication of by being paid its full value. The wife had no interest land to the public use. This grows out of the nature in the land, and the possibility wbich she did possess of a wife's interest in the lands, and whether it is was incapable of being estimated with any degree of such as ought to be regarded in giving compensation. accuracy. Under these circumstances the Legislature,

Then, after discussing the authorities, he had the power, which I think they have rightfully exremarks: “ The principle involved in the above and ercised, to direct that the value of the entire fee should similar cases is a pretty important one, nor has it bee! be paid to the husband of the appellant; and that the heretofore well defined. * * * It is ditficult to see corporation by ruch payment, in pursuance of the why it should not apply in all cases where the law an- statute, has acquired an indefeasible title to the prem

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THE ALBANY LAW JOURNAL.

castle that is war- thorizes the husband's land to be taken in inritum, and iry defense of the compensation therefor made for the fee of the same. maintained for babe | as, for instance, in ibose States where the mill.se le language of the is authorized to flow lands which he does not own. At Tin this particular common law a widow cannot hare dower of a castle,

lievertheless laid since, ainong other reasons, she could not put i sted, that a castle profitable use; and the same reasoning would apply us It subject to dower. to lands, tbougl granted by the busband, wbich have the necessary de- been appropriated to public uses, such as cemeteries, t be endowed, be- public parks and the like." 1 Washb. Real Prope d the public shall | (5th ed.) 279. It of a castle that is Trenting of the same point Judge Dillon says: "As and habitation of dower is not the result of contract, but is a positive ed.' Here we see legislative institution, it is constitutionally compelerit which the courts, for the Legislature to authorize lands 10 be taken bs a n holding the in- municipal corporation for a market, street or other I in lands appro- public use, upoji an appraisement and payment of their w, to the uses of value to the husband, the bolder of the fee, and each is furnish no in- taking and payment will confer au absolute title di

this principle to vested of any inchoate right of dower. Nor is a widon
les is considered, dowable in lauds dedicated log her husband in his life-
in the time of Mr. time to the public, where the dedication is complete,
9 right of dower or has been accepted and acted upon by the niunicipal

iced,' he says, 'as authorities.” 2 Mun. Corp. (4th ed.), $ 504. ssion, that under In a recent work of pronounced merit it is said: “A West Tudia and inarried woman cannot claim dower in lands dedi. Junction Canal cated by her husband to the public. It is settled tbat

Snow Hill and dower is created by law, and does not exist by virtue ill be bound by of contract, and that it is tberefore within the power ugh the title is of the Legislature to change or destroy the rights of a id the purchase- married woman at any time before they have rested. or paid into the This rule prevails where dower has been abolished and en the opinion of all estate in fee substituted. Dedication of land to al reputation, in public use is placed upon the same general principle as ent conveyancer, that on which rests the right of eminent domain, and of Londoni, had it is held that the property interests of the married ives bad titles of woman must yield to public necessity." Elliott Roads the subsequent & S. 108.

has been to dis- Another author says: “An inchoate right of dower les however this may be taken during the life-time of the husband, on rgone judicial in giving full compensation to the husband. The incho. Dower (2 ed.), ate right of dower is not such an interest as is capable

of assessnient. During the life of the husband be repdications in this resented the fee, and compensation to bim appropri. he widow is not ated the fee. It has been well beld, that when all eancludes his oblate is taken before the decease of the husband, the ? deducible from value of the widow's inchoate right of dower in deemed de dower in all too uncertain to admit of compensation; that the bus

ises." In that case the property was of great value, gard to the necessity of the husband joining his wife and was appropriated for the purpose of a market a deed in order to couvey their homestead or any i place.

terest therein; but where the husband alone ha In Gwynne v. Cincinnati, 3 Ohio, 24, a widow sought agreed in writing to convey to a railroad conipany to have dower assigned her in grounds occupied by a right of way across the bomestead, it was beld, ih. market house in the city of Cincinnati. The husband notwithstanding the failure of tbe wife to sign te during his life-time, in conjunction with other owners agreement, a court of equity would decree specific pe of property in the same square, agreed to open a way formance, the court remarking: Can a husb:u. or street through it, upon which a market house was grant a right of way to a railroad company orer tt to be erected. It stood upon that part of the square homestead property, unless the wife concurs and sig, given by one Piatt, a space for a street remaining open the conveyance? As applied to the circumstances ou both sides of it. Piatt, in his life-time, conveyed the this case, we answer the question also in the affirma property he owned in the square, and his wife joined tive. The right of way is but an easement, and doe him in the conveyance. It did not appear that any not pass the title, and in this case it does not and conveyance was made of the ground covered by the not claimed to affect the substantial enjoyment of tb market house by either Piatt or wife. Gwynne inter- homestead as such. If the homestead was a single lo married with the widow of Piatt, and brought the bill and the right of way occupied it all, so as to destro for dower. It was contended on behalf of Piatt's the homestead or defeat its occupancy as such, th widow that she was entitled to dower, because she had case would be very different." Railway Co. v. Swir not released it by any act of ber own. On the other ney, 38 Iowa, 182. With these authorities sheddin band, it was insisted that she was excluded from dower such a broad light on the subject under discussion, by the grant of the land in question to a public use. would seem difficult to stray from the true path of ad The court said: "The street, including the ground in judication; and they have been cited and quoted from question, was opened, and the market house estab- thus at large, not as doubting the views they enui lished, by an agreement with the owners of the ground ciate, but because of doubts attempted to be cast upo and under an ordivance of tbe city council of Cincin- their applicability to some of the salient features o nati. The whole space became subject to the same this case, and that applicability is now for discussions public regulations as the grounds originally laid out There can be no doubt, from the text-books and adju into streets, and for ottier public uses and purposes. dications, that where a railroad is empowered, as it The claim of duwer must stand upon the same princi- the present instance, to condemn land for public use ples that it would stand on in any case to the ground it occupies in all respects the same footing as any othe thus appropriated. The counsel for the complainants corporation or quasi corporation, municipal or other insist that it is a case to be distiuguished from that of wise, or governmental agency, when exercising simila public grounds condemned for public uses, but the authority to obtain land for a market place, for : court is unable to comprehend the distinctivn. When street, highway, jail or court-house. The State, in the a town is laid out, the law requires the plat to be re- first place, might directly assert its power, in any corded, and by such record the streets become public given instance, to take land for a public use, or it migh highways, and the title to the grounds set apart for delegate that attribute of sovereignty to any chosen public uses is vested in the county for the purposes agency, individual, or corporation, or municipality, o contemplated. The uses thus created are inconsistent county, the right to exercise which but for such dele with the exertion of any private right while the use gation could only be exercised by the State alone. remains; consequently all private rights must be either In Olcott v. Supervisors, 16 Wall. Joc. cit. 694, 695 suspended or abrogated. Such has been the general Judge Strong said: “That railroads, though cou. understanding, not only in this State, but, so far as structed by private corporations and owned by them, we are informed, in other States also. A claim for are public highways, has been the dootrine of nearly dower in the streets of a town, or in the public jail, all the courts ever since such conveniences for passage court-house or public offices, would be a novel one, and and transportation have had any existence. Very if sustained, could not be enjoyed without defeating early the question arose whether a State's right of emi. the original purpose and present use of the grant. It went domain could be exercised by a private corporacannot be admitted for the same reason that it is not tion created for the purpose of constructing a railadmitted to a castle in England. It could yield noth- road. Clearly it could not, unless taking land for such ing to the support of a widow, by a direct participa- a purpose by such an agency is taking land for public tion in the possession, without such an interference use. The right of eminent domain nowhere justifies with the public right to control the whole subject as to taking property for a private use. Yet it is a doctrine render its enjoyment inconvenient and unsafe, if not universally accepted that a State Legislature may auimpossible."

thorize a private corporation to take laud for the conIn Duncan v. City of Terre Haute, 85 Ind. 104, the struction of such a road, making compensation to the husband had donated land to be used as a street, the

What else does this doctrine mean, if not that wife not joining in the grant. After his death she building a railroad, though it be built by a private corpreferred her claim for dower. The court said: “The poration), is an act done for a public use? Aud the reacourts of this country seem to have uniformly held, son why the use has always been beld a public one is when the question has come before them, that when that such a road is a highway, whether made by the lauds are appropriated by the exercise of eminent do- government itself or by the agency of corporate bodies, main, or what is said to be equivalent to it, the dedica- or even by individuals, when they obtain their power to tion of lands to public use, the dower of the wife is de- construct it from legislative grant. * Whether feated."

the use of a railroad is a public or a private one de. In Minnesota a homestead cannot be conveyed ex- pends in no measure upon the question who concept by the joiut deed of the husband and wife, and structed it or who owns it. It has never been considyet it has been held in that State that where a part of ered a matter of any importance that the road was a homestead has been taken by a railroad company built by the agency of a private corporation. No matunder the law of eminent domain, and payment made ter who is the agent, the function performed is that to the husband alone, the law of homestead would not of the State. Though the ownership is private, the use prevent bim from disposing for his own use of the is public." money thus awarded him. Canty v. Latterner, 31 Minn. Judge Cooley says: “Accordingly, on the principle 239. In Iowa the same rule of law prevails with re- of public benefit, not only the State and its political

Owner.

public for a le. band must be regarded as the owner of the entire esacquired a right tate, and that as such he is entitled to full compensa. ey are lawfully tion for it.” Mills Em. Dom. (2d ed.), $ 71. minent domain. It may not be unprofitable to make some extracts ) apply as well from, and citations of, the adjudicated cases giring r public parks, support to the positious already quoted from the texta like character, books. Thus iu Moore v. Mayor, 8 N. Y. 110, by virtue ses of a market of a statute of New York, commissioners were apficult to discern pointed to assess damages to "the respective owners, tween the two lessees, parties and personis, respectirely, entitled unto burial grounds or interested in the lands," etc. The wife of one of the by statute." 1 owners, not having been made a party in the couden.

nation proceedings, after the death of her busband the learned au preferred a claim for dower against the city. The court s expression to beld: "In the case under consideration the land was 11 which dower taken against the consent of the husband, by an act oned, and that of sovereignty, for the public benefit. The only periring the life of sou owning and representing the fee was compensated , dedication of by being paid its full value. The wife bad no interest of the nature in the land, and the possibility which she did possess

whether it is was incapable of being estimated with any degree of componsation. accuracy. Under these circumstances the Legislature authorities, he had the power, which I think they have rightfully exhe above and ercised, to direct that the value of the entire fee should

jor has it bee! be paid to the husband of the appellant; and that the iitficult to see corporation br such parment, in pursuance of the e the law al. statute, bas acquired an indefeasible title to the prem.

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divisions, but also individuals and corporate bodies. tions can only be sustained upon the assumption that have been authorized to take private property for the the powers delegated are to a public agent to work out construction of works of public utility, and when duly a public use. * It is obvious that the object empowered by the Legislature so to do, their private which determines the character of the corporation is pecuniary interest does not preclude their being re- that designed by the Legislature, rather than that garded as public agencies in respect to the public good sought by the company. If that object be primarily the which is sought to be accomplished." "The manner private interest of its members, although an incidental in which the right of eminent domain shall be exer- benefit nay accrue to the government therefrom, then cised rests within the discretion of the Legislature. It the corporation is private; but if that object be the may be, and in point of fact generally is, effected by a public interest, to be secured by the exercise of powers delegation of its power to an agent. That agent may delegated for that purpose, which would otherwise rebe a corporate body, carrying on a work of public util- pose in the State, then, although private interest may ity, though for the purposes of private gain.

be incidentally promoted, the corporation is in its naThe instances of the delegation of the power of emi- ture public. It is essentially the trustee of the gore nent domain of most frequent occurrence are to be ernment for the promotion of the object desired; a found in the case of railroad companies, coupled to the mere agent to which authority is delegated to work general powers conferred by their charters. There is out the public interest, through the means provided usually an authority granted to appropriate lands so by a government for that purpose.

It argues far as required for the construction of their tracks." nothing that compensation is required to be made for 6 Am. & Eng. Enc. Law, 517, 518, tit. “Eminent Do- | property taken before it can be used, for this is made main." "The grant of a right to take land 'for the by the Constitution a condition to the exercise of this purposes of a railroad,' authorizes the taking of only right by the government itself, and the delegation of an easement, leaving the fee with the owner, to whom the power necessarily carries the incident with it. Nor the right of possession reverts on the cessation of the can it be said that the property when taken is not used publio use; and this is the limited interest usually by the public, but by the corporators for their own given by statuies authorizing the condemnation of benefit and advantage. * * * The grant to the corland for railroads. The property is however to be poration is in no essential particular different from the deemed taken for a public use itself, rather than for employment of commissioners or agenis. The differthe particular use and enjoyment by the party to ence is in degree rather than in principle; in compenwhose possession it passes. It does not therefore re- sation rather than in power. * It legitimately vert to the owner upon a mere transfer of the railroad follows that the tenure of the corporation is in the nato another company, nor upon its appropriation to an- ture of a trust for the public use, subject to the superother similar public use." Pierce Railr. 158. That vision of the government, while its franchises are but the right (of eminent domain) should be placed in the the consideration paid for the faithful execution of hands and under the control of a private corporation this trust." Suan v. Williams, 2 Mich. 427. detracts nothing from the public nature of the use, for So also in Texas it has been held that the right of as was vers correctly said by the Supreme Court of the company to occupy with its roadbed Suter's land Pennsylvania in Hays v. Risher, 32 Pem. St. 169, that depended upon his consent then given or a judicial an individual expects to gain by the use of the way, condemnation. A railroad is a public highway (Const. and has private motives for risking the whole of the Tex., art. 10, $ 2), and especially is this true, so far as necessary investment, and acquires peculiar rights in the acquisition of the right of way is concerned, for the work, detracts nothing, from the public aspect upon 10 other theory could the right of eminent deof it. The same can be said of every railway corpora- main be conferred upon a railroad corporation. In this tion, and of almost every public enterprise.” New Cen- respect the doctrine of dedication, or rather of estoptral Coal Co. v. George's Creek Coal & Iron Co., 37 Md. pel in pais, would apply to the right of way for a railloc. cit. 562.

road, the same as to any other public highway." RailIn Railroad Co. v. Baily, 3 Ore. loc. cit. 175, it was road Co. v. Sutor, 56 Tex. 496. sought to appropriate lands already used for public These authorities, as well as those heretofore cited, purposes, and the court said: “It is wbolly immate- show in the most convincing manner, that the dedicarial upon this point whether such railway company ob- tion of land to public use on behalf of a railroad contains the property which forms the roadbed by pur- pany occupies, in legal contemplation, the same place chase or by judgment of the court. The general cor. as does condemnation for a similar purpose; both are poration law, and the act of incorporation under it, but means to the same end; both bave the same ob. create the corporation and confer whatever franchises ject in view-for “dedication is an appropriation of or grants are conferred. It is not the condemnation of laud to some public use, made by the owner of the property that gives character to the corporation. The fee” (Ang. & D. Highw. [3d ed.], $ 132), while condemjudgment of the court is a means of placing the corpo- nation is but the appropriation in invitum of the land ration in possession of what is necessary to a discharge in the absence of the owner's consent. The only difof its francbises and its duties to the public. But when ference between them is, the former is voluntary; the property is condemned, the corporation has no higher latter compulsory. Both are mere conduits, through or better right to that property than it has to prop- which flows the consent of eminent domain. In the erty acquired by purchase. It follows from wbat had present instance the charter of the original company been already said, that whether tbe right of way is ac- made either method effectual, and only on the failure quired by gift or purchase, or by the judgment of a of the first was the second method permissible. The court, the corporation is so far a public agent that prior was indeed a condition precedent to pursuing the what it holds in its corporate capacity is held for a latter method, as all of our own reports on the subject public use.

show. It is conceded in this case, that where the purWhen discussing the powers of railroad companies, pose is to appropriate lands to a public use, ex. gr. als distinguished from mere private corporations, in the for a street, bighway, jail, court-house, or market matter of the condemnation of lands, the Supreme place, the husband, as the owner of the fee, repCourt of Michigan said: “They are the means em- resents the wife, and that his deed or dedicaployed to carry into execution a given power. That tion is equally as effective in barring the wife's in. private property can be taken by the government from choate dower as would be condernuation proceedings; one and bestowed upon another for prirate use will but a similar operative effect as to a deed to another not for a moment be contended, and these corpora- | public use, to-wit, a right of way to a railroad com

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THE ALBANY LAW JOURNAL.

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corporate bodies, tions can only be sustained upon the assumption that

property for the the powers delegated are to a public agent to work out
ty, and when duly a public use. * * * It is obvious that the object
, do, their prirate wbich determines the character of the corporation is
le their being re- that Jesigned by the Legislature, rather than that
to the public good sought by the company. If that object be primarily the

"The manner private interest of its members, although an incidental
jin shall be exer- benefit may accrue to the government therefrom, then
be Legislature. It the corporation is private; but if that object the
y is, effected by a public interest, to be secured by the exercise of powers

That agent may delegated for that purpose, which would otherwise re-
ork of public util pose in the State, then, although private interest may
te gaill. *

* * be incidentally promoted, the corporation is in its in-
he power of emi. ture public. It is essentially the trustee of the guts
irrence are to be erument for the promotion of the object desired; a
ies, coupled to the mere agent to which authority is delegated to work
arters. There is out the public interest, through the means prorided
ropriate lands so by a goverument for that purpose. * * * It argues
of their tracks." nothing that compensation is required to be made for
1, "Eminent Do. property taken before it can be used, for this is made
ke land for the by the Constitution a condition to the exercise of this
e taking of only right by the government itsell, and the delegation of

owner, to whom the power necessarily carries the incident with it. Nor cessation of the can it be said that the property when taken is not used interest usually by the public, but by the corporators for their own ondemnation of benefit and advantage. * * * The grant to the cor

however to be poration is in no essential particular different from the rather than for employment of commissioners or agents. The differby the party to ence is in degree rather than in principle; in compen. ot therefore re-sation rather than in power. * * * It legitimately r of the railrond follows that the tenure of the corporation is in the naopriation to an- ture of a trust for the public use, subject to tbe superilr. 138. “That vision of the government, while its franchises are but be placed in the the consideration paid for the faithful execution of ate corporation this trust." Suan v. Williams, 2 Mich. 427. re of the use, for So also in Texas it has been held that "the right of preme Court of the company to occupy with its roadbed Suter's land 111. St. 169, that depended upon lis consent then given or a judicial se of the way, condemnation. A railroad is a public highway Const. he whole of the Tex., art. 10, $ 2), and especially is this true, so far as culiar rights in the acquisition of the right of way is concerned, for e public aspect upon no other theory could the right of emivent dorailway corpora- main be conferred upon a railroad corporation. In this rise." New Cen. respect the doctrine of dedication, or ratber of estopIron Co., 37 Md. pel in pais, would apply to the right of way for a rail

road, the same as to any other public highway," Rail

pany, is devied. We are satisfied from an examina- the tenant by deed in common form. Then it tion of the authorities, and from the very nature and pointed out in the opinion that two methods are pr reason of the case, that this distinction is unwarranted vided by the statute whereby a railroad company ca and unbound, and will not bear the test of judicial take land for depot and station purposes: First, E sorutiny. Tbere is no warrant for the assertion, and purchase and conveyance from the owner; second, there is no authority or reason for the assertion, that the owner refuses to sell, by application, etc., and th one public highway dedicated by deed to public use assessment of damages; that by the first, if the dee sbould escape the incubus of iuchoate dower, while is without restriction, the corporation obtains a fee another highway, proclaimed by the Constitution of the soil, just as a natural person would do, and the cothe State to be a public highway and equally dedicated poration may convey the land, when no longer nece by deed to public use, should be compelled to bear sary for its purposes, to whomsoever it will; but tha such a burden, unless resort were bad to condemna by the second method the corporation simply acquir tion proceedings. What particular virtue inheres in an easement in the land, and the use being abandone such proceedings? Why should a judgment which the easement is extinguished, and the land reverts condemns an eagement - a right of way over a man's the owner of the soil. And upon these premises it wa land - do more than that man's deed executed for properly ruled that the land in question was subject the same purpose? These questions answer them. the demand for dower. But how different that cas selves.

is in its facts from the one at bar? First, there the Though, in case of a railroad, the land in one sense land was simply sold under execution, and so the hu is appropriated or accepted for the private gain of the band never represented his wife in receiving compei particular railroad company, set the use is none the sation for his land, and so her inchoate dower was ne less a public one, as all the authorities show; and but extinguished therein for that renson, and the lan for the fact that the use is a public one, there would be passed to the first and subsequent purchasers, with th 110 basis laid, in either law or fact, for the exercise of burden of inchoate dower fettered to it; second, th the right of eminent domain, in either of the methods land in that case was conveyed by the last purchase mentioned. Wherever the right of eminent domain to the railroad company in fee, unbampered by a sii exists there exists also, as its companion and legal gle restriction and unburdened by a single use, and th equivalent, the right to accept a voluntary dedication. railroad company took it just as a natural personi The two rights are the inseparable and inevitable con- might bave done. Here, on the contrary, the husban comitants of each other. To rule otherwise would be represented the wife, received or waived compensa to deny the cogent reasoning of the authorities cited; tion for the land, and only granted an easement, whic to rule otherwise would produce these anomalous re- is precisely just what tbat company would bave gaine sults: That a railroad company, though ever so desir. at the end of condemnation proceedings. For thes ous of doing so, could not accept a voluntary relin- reasons Nye's Case is not authority in the case befor quishment of the husband to lauds for a right of way us, and if it were, we would not follow it, in oppos without inourring long years afterward, upon the death tion to such an array of well-considered cases & of the husband, the peril and the penalty of a demand already cited. for dower consummate and unsatisfied in a right of 2. Finally, this is the first suit in this State, that w way for which compensation in full had long since are aware of, that in circumstances like the present, been paid. Under such a ruling a railroad company suit for dower has been brought against a railroa would of necessity be forced to reject the proffered company. The common consent and opinion of th deed, the amicable settlement, and be driven to con- legal profession in this State has been that it was no demnation proceedings in order to cut off inchoate necessary to make a wife a party in order to bar he rights, possibilities and expectancies—sometbing the inchoate right of dower, either as to a railroad right value and duration of which the law as yet has fur- way or other public high way. This of itself is a ver nished no method and provided uo machinery for es- pregnant circumstance, and very good evidence timating. Such a ruling would be to encourage liti- what the law is. State v. Myers, 99 Mo. loc. cit. 114 gious strife-something assuredly not favored by the Sedg. Stat. & Const. Law (2d ed.), 313 et seq., and case law. Besides, if in the bypothetical case the parties cited. In a case of the House of Lords, under Statut "could agree," there would be no basis for proceed. of 27 Henry VIII, Lord Hardwicke said:

" The opin ings to condemn, because the essential jurisdictional ion of conveyancers in all times, and their constar fact of non-agreement would be wholly lacking; and course is of great weight. They are to advise, and therefore there could be no such proceeding had, their opinion is not to prevail, must every case com except by practicing a fraud on the court by making to law? No; the received opinion ought to govern. an averment in the pleadings at war with the real fact, And Lord Mansfield said: “Consider also the usage that the parties litigant had failed to agree.

and trausactions of mankind upon the statute. The But it is persistently urged that the case of Nye v. object of all law with regard to real property is quie Railroad Co., 113 Mass. 277, supports the contention of and repose.” Earl of Buckinghamshire v. Drury, the plaintiff that her dower is not bound by the deed Eden, 61. In Scanlan v. Childs, 33 Wis. 663, the cour of her husband. But after a careful reading of that say: “The general understanding of law and constan case, it is not thought it yields that claim any support practice under it, for a period of over twenty years, b whatever. The facts of it aro few, plain and simple. all officers charged with the execution of it, uuques Here they are: In 1826 Nye bought the land and se. tioned by any public or private action, is strong, cured payment of the purchase-money by a mortgage, not conclusive, evidence of the true meauing." I which his wife did not sign. In 1828 his equity of re- Packard v. Richardson, 17 Mass. 143, the court say demption was sold under execution to Washburn, who "A contemporaneous is generally the best construc conveyed to Newcomb, who in 1872 conveyed the land tion of a statute. It gives the sense of a community to the railroad company, who purchased the same for of the terms made use of bya Legislature. If there i a freight station outside of the location of their road. ambiguity in the language, the understanding and a The deed was in warranty form, and contained no re- plication of it, when the statute first comes into ope striction as to the use of the land. In 1846 Newcomb ration, sanctioned by long acquiescence on the part o satisfied the mortgage. Nye died in 1873, whereupon the Legislature and judicial tribunals, is the stronges bis widow sued for her dower; and thereupon it was evidence that it has been rightly explained in prac ruled that the demandant had an inchoate right of tice." dower in the premises at the time it was conveyed to For reasons already given it is unnecessary to paa

cit. 175, it was road Co. r. Sutor, 56 Tex. 496. ised for public These authorities, as well as those heretofore cited, holly immate- show in the most convincing mammer, that the dedicaty company ob- tion of land to public use on behalf of a railroad com. vadbed by puro pang occupies, in legal contemplation, the same place le general cor as does condemnation for a similar purpose; both are ation under it, but means to the same end; both bave the same obAver franchises ject in riew-for "dedication is au appropriation of udemnation of land to some public use, made by the owner of the poration. The fee" (Ang.& D. Highw. [3d ed.). & 132), while condemcing the corpo- natiou is but the appropriation in inritum of the land

to a discharge in the absence of the owner's consent. The only difblic. But when ference between them is, the former is voluntary; the has no bigher latter compulsory. Both are mere conduits, through

bas to prop. which flows the consent of eminent domain. In the rom what had present instance the charter of the original company t of way is ac- made either method effectual, and only on the failure udgment of a of the first was the second method permissible. The lic agent that prior was indeed a condition precedent to pursuing the is held for a latter method, as all of our owil reports on the subject

show. It is conceded in this case, that where the pur.

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d companies, pose is to appropriate lands to a public use, ex. gr. rations, in the for a street, bighwas, jail, court-bouse, or market the Supreme place, the husband, as the owner of the fee, rep

resents the wife, and that his deed or dedicapower. That / tion is equally as effectire in barring the wife's iy. rument from choate dower as would be condemnation proceedings; rate use will / but a similar operative effect as to a deed to another hese corpora. / public use, to-wit, a right of way to a railroad com

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upon the grounds alleged for recorery in the second ment under a subsequent agreement by which a procount in the petition. The judgment of the lower portion of the annual premium was to be so paid, and court should be affirmed.

defendant's evidence relied ou to establish such subse

quent agreement also showed that defendant agreed All concur, except Black, J., who dissents.

with insured to receive the quarterly payments after
they became due if made within a reasonable time, de-

fendant is estopped to insist on a technical forfeiture. NEW YORK COURT OF APPEALS AB. Leslie v. Insurance Co., 63 N. Y. 34: Meyer v. InsurSTRACTS.

ance Co., 73 id. 516; Wyman v. Insurance Co., 119 id.

274; Kenyon v. Association, 1:22 id. 247; Attorney-GenAPPEAL-DISMISSAL-SECOND APPEAL.-Where an eral v. Insurance Co., 33 Hun, 141; Insurance Co. v. undertaking to perfect an appeal is cancelled for fraud, Wolff, 95 U. S. 3:26; Insurance Co. v. Eggleston, 96 id. and, upon stipulation of the parties, leave is granted 577; Insurance Co. v. Doster, 106 id. 37; Helme v. Into file a new undertaking in place thereof, provided it surance Co., 61 Penn. St. 107. Nov. 29. 1892. De Frece be filed within a certain time, and the appeal is dis- v. National Life 118. Co. Opinion by Maynard, J. 19 missed for failure to comply therewith, appellant still N. Y. Supp. 8, affirmed. has the right, within the statutory time for appealing, to make and perfect another appeal. Langley v. War

INSURANCE MUTUAL BENEFT - FORFEITURE her, I N. Y. 606; Blake v. Manufacturing Co., 75 id.

WAIVER.- Where a member of a mutual benefit so611; Good v. Daland, 119 id. 153. Oct. 11, 1892. Culs ciety has made falee statements as to his age in his apliford v. Gadd. Opinion per Curiam.

plication for membership, and has never stated his

true age, the fact that pending an investigation of the EVIDENCE - PAROL - TO EXPLAIN WRITTEN CON

matter by the society, which investigation is carried TRACT-GUARANTY.—Where machinery sold is guaranı

on with reasonable diligence, and results in bis expulteed in writing "to take care of all the pulp produced sion, assessments are levied against and paid by bim, from four.Scott grinders,' and deliver the pulp fifty does not constitute a waiver of the right to expel bim per cent dry," and it is shown that “Scott grinders"

for his false statements, where up tu the time of his are of varying capacity, it may be shown by parol that expulsion the society had no legal proof that his age the guaranty was given on the representation of the

had been falsely stated. Oct. 11, 1892. Preuster v. purchaser that he had contracted for the purchase of Supreme Council of Order of Chosen Friends. Opinion four "Scott grinders" of a stated capacity. The ex- by Finch, J. 15 N. Y. Supp. 41, affirmed. trinsic circumstances show that they had reference to the production of the four grinders co: tracted for, JUSTICES OF SUPREME COURT-COMPENSATION.having the capacity represented by the defendant. In The Constitution, article 6, section 13, provides that interpreting the guaranty, parol evidence identifying the compensation of judges of the Court of Appeals the machines kuown as “Scott grinders" is essential. and justices of the Supremo Court, whose terms are The fact that the grinders are of different productive abridged by their having reached the age of seventy capacity involves the further inquiry, to grinders of years, shall be continued through the remainder of the what capacity did the parties refer? Tois, we think, term for which they were elected. Held, that such was the gubject of explanation by parol evidence. compensation does not include the yearly sum allowed Such evidence does not contradict the written con- by the board of supervisors of Kings county, in pursutract, nor does it add a new term thereto. It simply ance of authority conferred by the Laws of 1866, chap. makes intelligible what needs explanation, and con- ter 821, to justices of the Supreme Court residing in struing the written contract in. light of the explana. that county, for superintending the drawing of jurors, tion, full force is given to all the words without add- and that a justice whose term of office had expired by ing to or detracting any thing therefrom. See Chapin reason of the age limitation was not entitled to recover v. Dobson, 78 N. Y. 74; Schmittler v. Simon, 114 id. euch allowance. The word "compensation" is used 177: 1 Greenl. Ev., § 227, et seq. The parol evidence in both sections 13 and 14 of the article. In the latter was not admitted to limit the guaranty to a part of the section it is provided that "the judges and justices product of the Scott grinders, which the parties had in hereinbefore mentioned shall receive for their services mind, but to show tbe particular grinders referred to, a compensation to be established by law, which shall and their capacity, and that the contract related to not be diminished during their official terms." The grinders of that description. Oct. 11, 1892. Bugley & compensation which was to be continued is obviously Sewall Co. v. Saranac River Pulp & Paper Co. Opin- the same compensation mentioned in the next section, ion by Andrews, J. 16 N. Y. Supp. 657, affirmed. and which is to be established by law, and not diminINJUNCTION-BOND--JUDGMENT AGAINST SURETIES.

ished during the official term of the incumbent. The

Constitution, in using the words “compensation to be - Where an action is brought for an injunction, and a

established by law," did not contemplate a resolution preliminary injunction is granted, a dismissal of the

of a municipal body fixing the compensation of a action and a dissolution of the injunction, because of judge for local services as member of a board which contempt of plaintiff in interfering with the commissioner appointed to take evidence, is not an adjudica. could as well be performed by any other officer. When

the amendment of 1880 was adopted tbe word “com. tion that plaintiff had no right to such preliminary injunction, and defendant is not entitled to an order of pensation" had been in the judiciary article for ten

years, and was understood to mean the salary of the reference to ascertain and assess his damages on the

judge as such, and the allowance for expenses; and it injunction bond. Palmer v. Foley, 71 N. Y. 106; 1 is quite unreasonable to suppose that either the fram. Jobusou v. Elwood, 82 id. 363. Nov. 29, 1892. Appolli

ers of the amendment or the people in adopting it bad maris Co., Limited, v. Venable. Opinion by Andrews,

in mind the allowance which a municipality or board J. 18 N. Y. Supp. 535, reversed.

might, in its discretion, award to a judge for local serINSURANCE LIFE-FAILURE TO PAY PREMIUM - vices as member of a board for drawing jurors. ESTOPPEL TO CLAIM FORFEITURE-WAIVER OF CONDI- Neither the language nor the purpose of the amend. TION FOR PROMPT PAYMENT OF PREMIUM.-(1) Though ment would justify the conclusion that the retiring a policy of life insurance contained a condition that it judge was secured the payment of such a sum of should be forfeited if irisured failed to pay any install- | money for years after he became disqualified to perment of premium when due, yet when the non-pay. form the duties by reason of the vacation of his office. ment relied on for a forfeiture was a quarterly install- | It would seem to be a fair test of the question whether

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