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 above quoted, 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 Loudon 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 purchasemoney 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 judicial inquiry on several occasions."' 1 Scrib. Dower (2d ed.), 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 court 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.), 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 dedicated 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, dedication of land to the public use. This grows out of the nature of a wife's interest in the lands, and whether it is such as ought to be regarded in giving compensation. Then, after discussing the authorities, he remarks: "The principle involved in the above and similar cases is a pretty important one, nor has it been heretofore well defined. *** It is difficult to see why it should not apply in all cases where the law au

**

thorizes the husband's land to be taken in in ritum, and compensation therefor made for the fee of the same. as, for instance, in those States where the mill-owner is authorized to flow lands which he does not own. At common law a widow cannot have dower of a castle, since, among other reasons, she could not put it to profitable use; and the same reasoning would apply as to lands, though granted by the husband, which have been appropriated to public uses, such as cemeteries, public parks and the like." 1 Washb. Real Prop. (5th ed.) 279.

Treating of the same point Judge Dillon says: "As dower is not the result of contract, but is a positive legislative institution, it is constitutionally competent for the Legislature to authorize lands to be taken by a municipal corporation for a market, street or other public use, upon an appraisement and payment of their value to the husband, the holder of the fee, and such taking and payment will confer au absolute title divested of any inchoate right of dower. Nor is a widow dowable in lands dedicated by her husband in his lifetime to the public, where the dedication is complete, or has been accepted and acted upon by the municipal authorities." 2 Mun. Corp. (4th ed.), § 594.

In a recent work of pronounced merit it is said: “A married woman cannot claim dower in lands dedicated by her husband to the public. It is settled that dower is created by law, and does not exist by virtue of contract, and that it is therefore within the power of the Legislature to change or destroy the rights of a married woman at any time before they have vested. This rule prevails where dower has been abolished and an estate in fee substituted. Dedication of land to public use is placed upon the same general principle as that on which rests the right of eminent domain, and it is held that the property interests of the married woman must yield to public necessity." Elliott Roads & S. 108.

Another author says: "An inchoate right of dower may be taken during the life-time of the husband, on giving full compensation to the husband. The inchoate right of dower is not such an interest as is capable of assessment. During the life of the husband he represented the fee, and compensation to him appropriated the fee. It has been well held, that when an estate is taken before the decease of the husband, the value of the widow's inchoate right of dower is deemed too uncertain to admit of compensation; that the husband must be regarded as the owner of the entire estate, and that as such he is entitled to full compensation for it." Mills Em. Dom. (2d ed.), § 71.

It may not be unprofitable to make some extracts from, and citations of, the adjudicated cases giving support to the positions already quoted from the textbooks. Thus in Moore v. Mayor, 8 N. Y. 110, by virtue of a statute of New York, commissioners were appointed to assess damages to “ the respective owners, lessees, parties and persons, respectively, entitled unto or interested in the lands," etc. The wife of one of the owners, not having been made a party in the condemnation proceedings, after the death of her husband preferred a claim for dower against the city. The court held: "In the case under consideration the land was taken against the consent of the husband, by an act of sovereignty, for the public benefit. The only person owning and representing the fee was compensated by being paid its full value. The wife had no interest in the land, and the possibility which she did possess was incapable of being estimated with any degree of accuracy. Under these circumstances the Legislature had the power, which I think they have rightfully exercised, to direct that the value of the entire fee should be paid to the husband of the appellant; and that the corporation by such payment, in pursuance of the statute. has acquired an indefeasible title to the prem

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divisions, but also individuals and corporate bodies, have been authorized to take private property for the construction of works of public utility, and when duly empowered by the Legislature so to do, their private pecuniary interest does not preclude their being regarded as public agencies in respect to the public good which is sought to be accomplished." The manner in which the right of eminent domain shall be exercised rests within the discretion of the Legislature. It may be, and in point of fact generally is, effected by a delegation of its power to an agent. That agent may be a corporate body, carrying on a work of public utility, though for the purposes of private gain. The instances of the delegation of the power of eminent domain of most frequent occurrence are to be found in the case of railroad companies, coupled to the general powers conferred by their charters. There is usually an authority granted to appropriate lands so far as required for the construction of their tracks." 6 Am. & Eng. Enc. Law, 517, 518, tit. "Eminent Domain." “The grant of a right to take land for the purposes of a railroad,' authorizes the taking of only an easement, leaving the fee with the owner, to whom the right of possession reverts on the cessation of the public use; and this is the limited interest usually given by statutes authorizing the condemnation of land for railroads. The property is however to be deemed taken for a public use itself, rather than for the particular use and enjoyment by the party to whose possession it passes. It does not therefore revert to the owner upon a mere transfer of the railroad to another company, nor upon its appropriation to another similar public use." Pierce Railr. 158. "That the right [of eminent domain] should be placed in the hands and under the control of a private corporation detracts nothing from the public nature of the use, for as was very correctly said by the Supreme Court of Pennsylvania in Hays v. Risher, 32 Penn. St. 169, that an individual expects to gain by the use of the way, and has private motives for risking the whole of the necessary investment, and acquires peculiar rights in the work, detracts nothing, from the public aspect of it. The same can be said of every railway corporation, and of almost every public enterprise." New Central Coal Co. v. George's Creek Coal & Iron Co., 37 Md. loc. cit. 562.

In Railroad Co. v. Baily, 3 Ore. loc. cit. 175, it was sought to appropriate lands already used for public purposes, and the court said: "It is wholly immaterial upon this point whether such railway company obtains the property which forms the roadbed by purchase or by judgment of the court. The general corporation law, and the act of incorporation under it, create the corporation and confer whatever franchises or grants are conferred. It is not the condemnation of property that gives character to the corporation. The judgment of the court is a means of placing the corporation in possession of what is necessary to a discharge of its franchises and its duties to the public. But when property is condemned, the corporation has no higher or better right to that property than it has to property acquired by purchase. It follows from what had been already said, that whether the right of way is acquired by gift or purchase, or by the judgment of a court, the corporation is so far a public agent that what it holds in its corporate capacity is held for a public use.

When discussing the powers of railroad companies, as distinguished from mere private corporations, in the matter of the condemnation of lands, the Supreme Court of Michigan said: "They are the means employed to carry into execution a given power. That private property can be taken by the government from one and bestowed upon another for private use will not for a moment be contended, and these corpora

tions can only be sustained upon the assumption that the powers delegated are to a public agent to work out a public use. * It is obvious that the object which determines the character of the corporation is that designed by the Legislature, rather than that sought by the company. If that object be primarily the private interest of its members, although an incidental benefit may accrue to the government therefrom, then the corporation is private; but if that object be the public interest, to be secured by the exercise of powers delegated for that purpose, which would otherwise repose in the State, then, although private interest may be incidentally promoted, the corporation is in its nature public. It is essentially the trustee of the government for the promotion of the object desired; a mere agent to which authority is delegated to work out the public interest, through the means provided by a government for that purpose. * * * It argues nothing that compensation is required to be made for property taken before it can be used, for this is made by the Constitution a condition to the exercise of this right by the government itself, and the delegation of the power necessarily carries the incident with it. Nor can it be said that the property when taken is not used by the public, but by the corporators for their own benefit and advantage. * ** The grant to the corporation is in no essential particular different from the employment of commissioners or agents. The difference is in degree rather than in' principle; in compensation rather than in power. *** It legitimately follows that the tenure of the corporation is in the nature of a trust for the public use, subject to the supervision of the government, while its franchises are but the consideration paid for the faithful execution of this trust." Swan v. Williams, 2 Mich. 427.

So also in Texas it has been held that "the right of the company to occupy with its roadbed Suter's land depended upon his consent then given or a judicial condemnation. A railroad is a public highway (Const. Tex., art. 10, § 2), and especially is this true, so far as the acquisition of the right of way is concerned, for upon no other theory could the right of eminent domain be conferred upon a railroad corporation. In this respect the doctrine of dedication, or rather of estoppel in país, would apply to the right of way for a railroad, the same as to any other public highway." Railroad Co. v. Sutor, 56 Tex. 496.

These authorities, as well as those heretofore cited, show in the most convincing manner, that the dedication of land to public use on behalf of a railroad company occupies, in legal contemplation, the same place as does condemnation for a similar purpose; both are but means to the same end; both have the same object in view-for dedication is an appropriation of land to some public use, made by the owner of the fee" (Ang. & D. Highw. [3d ed.]. § 132), while condemnation is but the appropriation in invitum of the laud in the absence of the owner's consent. The only difference between them is, the former is voluntary; the latter compulsory. Both are mere conduits, through which flows the consent of eminent domain. In the present instance the charter of the original company made either method effectual, and only on the failure of the first was the second method permissible. The prior was indeed a condition precedent to pursuing the latter method, as all of our own reports on the subject show. It is conceded in this case, that where the purpose is to appropriate lands to a public use, ex. gr. for a street, highway, jail, court-house, or market place, the husband, as the owner of the fee, represents the wife, and that his deed or dedication is equally as effective in barring the wife's inchoate dower as would be condemnation proceedings; but a similar operative effect as to a deed to another public use, to-wit, a right of way to a railroad com

pany, is denied. We are satisfied from an examination of the authorities, and from the very nature and reason of the case, that this distinction is unwarranted and unsound, and will not bear the test of judicial scrutiny. There is no warrant for the assertion, and there is no authority or reason for the assertion, that one public highway dedicated by deed to public use should escape the incubus of inchoate dower, while another highway, proclaimed by the Constitution of the State to be a public highway and equally dedicated by deed to public use, should be compelled to bear such a burden, unless resort were had to condemnation proceedings. What particular virtue inheres in such proceedings? Why should a judgment which condemns an easement—a right of way over a man's land - do more than that man's deed executed for the same purpose? These questions answer themselves.

Though, in case of a railroad, the land in one sense is appropriated or accepted for the private gain of the particular railroad company, yet the use is none the less a public one, as all the authorities show; and but for the fact that the use is a public one, there would be no basis laid, in either law or fact, for the exercise of the right of eminent domain, in either of the methods mentioned. Wherever the right of eminent domain exists there exists also, as its companion and legal equivalent, the right to accept a voluntary dedication. The two rights are the inseparable and inevitable concomitants of each other. To rule otherwise would be to deny the cogent reasoning of the authorities cited; to rule otherwise would produce these anomalous results: That a railroad company, though ever so desirous of doing so, could not accept a voluntary relinquishment of the husband to lauds for a right of way without incurring long years afterward, upon the death of the husband, the peril and the penalty of a demand for dower consummate and unsatisfied in a right of way for which compensation in full had long since been paid. Under such a ruling a railroad company would of necessity be forced to reject the proffered deed, the amicable settlement, and be driven to condemnation proceedings in order to cut off inchoate rights, possibilities and expectancies-something the value and duration of which the law as yet has furnished no method and provided uo machinery for estimating. Such a ruling would be to encourage litigious strife-something assuredly not favored by the law. Besides, if in the bypothetical case the parties "could agree," there would be no basis for proceed. ings to condemn, because the essential jurisdictional fact of non-agreement would be wholly lacking; and therefore there could be no such proceeding had, except by practicing a fraud on the court by making an averment in the pleadings at war with the real fact, that the parties litigant had failed to agree.

But it is persistently urged that the case of Nye v. Railroad Co., 113 Mass. 277, supports the contention of the plaintiff that her dower is not bound by the deed of her husband. But after a careful reading of that case, it is not thought it yields that claim any support whatever. The facts of it are few, plain and simple. Here they are: In 1826 Nye bought the land and secured payment of the purchase-money by a mortgage, which his wife did not sign. In 1828 his equity of redemption was sold under execution to Washburn, who conveyed to Newcomb, who in 1872 conveyed the land to the railroad company, who purchased the same for a freight station outside of the location of their road. The deed was in warranty form, and contained no restriction as to the use of the land. In 1846 Newcomb satisfied the mortgage. Nye died in 1873, whereupon his widow sued for her dower; and thereupon it was ruled that the demandant had an inchoate right of dower in the premises at the time it was conveyed to

the tenant by deed in common form. Then it is pointed out in the opinion that two methods are provided by the statute whereby a railroad company can take land for depot and station purposes: First, by purchase and conveyance from the owner; second, if the owner refuses to sell, by application, etc., and the assessment of damages; that by the first, if the deed is without restriction, the corporation obtains a fee in the soil, just as a natural person would do, and the corporation may convey the land, when no longer necessary for its purposes, to whomsoever it will; but that by the second method the corporation simply acquires an easement in the land, and the use being abandoned, the easement is extinguished, and the land reverts to the owner of the soil. And upon these premises it was properly ruled that the land in question was subject to the demand for dower. But how different that case is in its facts from the one at bar? First, there the land was simply sold under execution, and so the husband never represented his wife in receiving compensation for his land, and so her inchoate dower was not extinguished therein for that reason, and the land passed to the first and subsequent purchasers, with the burden of inchoate dower fettered to it; second, the land in that case was conveyed by the last purchaser to the railroad company in fee, unhampered by a single restriction and unburdened by a single use, and the railroad company took it just as a natural person might have done. Here, on the contrary, the husband represented the wife, received or waived compensation for the land, and only granted an easement, which is precisely just what that company would have gained at the end of condemnation proceedings. For these reasons Nye's Case is not authority in the case before us, and if it were, we would not follow it, in opposition to such an array of well-considered cases as already cited.

2. Finally, this is the first suit in this State, that we are aware of, that in circumstances like the present, a suit for dower has been brought against a railroad company. The common consent and opinion of the legal profession in this State has been that it was not necessary to make a wife a party in order to bar her inchoate right of dower, either as to a railroad right of way or other public highway. This of itself is a very pregnant circumstance, and very good evidence of what the law is. State v. Myers, 99 Mo. loc. cit. 114; Sedg. Stat. & Const. Law (2d ed.), 313 et seq., and cases cited. In a case of the House of Lords, under Statute of 27 Henry VIII, Lord Hardwicke said: "The opinion of conveyancers in all times, and their constant course is of great weight. They are to advise, and if their opinion is not to prevail, must every case come to law? No; the received opinion ought to govern." And Lord Mansfield said: "Consider also the usages and transactions of mankind upon the statute. The object of all law with regard to real property is quiet and repose." Earl of Buckinghamshire v. Drury, 2 Eden, 61. In Scanlan v. Childs, 33 Wis. 663, the court say: "The general understanding of law and constant practice under it, for a period of over twenty years, by all officers charged with the execution of it, unquestioned by any public or private action, is strong, if not conclusive, evidence of the true meaning." In Packard v. Richardson, 17 Mass. 143, the court say: "A contemporaneous is generally the best construction of a statute. It gives the sense of a community; of the terms made use of byɛ Legislature. If there is ambiguity in the language, the understanding and application of it, when the statute first comes into operation, sanctioned by long acquiescence on the part of the Legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice."

For reasons already given it is unnecessary to pass

upon the grounds alleged for recovery in the second count in the petition. The judgment of the lower court should be affirmed.

All concur, except BLACK, J., who dissents.

NEW YORK COURT OF APPEALS ABSTRACTS.

ment under a subsequent agreement by which a proportion of the annual premium was to be so paid, and defendant's evidence relied on to establish such subsequent agreement also showed that defendant agreed with insured to receive the quarterly payments after they became due if made within a reasonable time, defendant is estopped to insist on a technical forfeiture. Leslie v. Insurance Co., 63 N. Y. 34: Meyer v. Insurance Co., 73 id. 516; Wyman v. Insurance Co., 119 id. 274; Kenyon v. Association. 122 id. 247; Attorney-General v. Insurance Co., 33 Hun, 141; Insurance Co. v. Wolff, 95 U. S. 326; Insurance Co. v. Eggleston, 96 id. 577; Insurance Co. v. Doster, 106 id. 37; Helme v. Insurance Co., 61 Penn. St. 107. Nov. 29, 1892. De Frece v. National Life Ins. Co. Opinion by Maynard, J. 19 N. Y. Supp. 8, affirmed. INSURANCE MUTUAL BENEFT FORFEITURE WAIVER.-Where a member of a mutual benefit so

EVIDENCE-PAROL-TO EXPLAIN WRITTEN CONTRACT GUARANTY.-Where machinery sold is guaranteed in writing to take care of all the pulp produced from four Scott grinders,' and deliver the pulp fifty per cent dry," and it is shown that "Scott grinders' are of varying capacity, it may be shown by parol that the guaranty was given on the representation of the purchaser that he had contracted for the purchase of four "Scott grinders" of a stated capacity. The extrinsic circumstances show that they had reference to the production of the four grinders contracted for, having the capacity represented by the defendant. In interpreting the guaranty, parol evidence identifying the machines known as "Scott grinders" is essential. The fact that the grinders are of different productive capacity involves the further inquiry, to grinders of what capacity did the parties refer? This, we think, was the subject of explanation by parol evidence. Such evidence does not contradict the written contract, nor does it add a new term thereto. It simply makes intelligible what needs explanation, and construing the written contract in. light of the explanation, full force is given to all the words without adding to or detracting any thing therefrom. See Chapin v. Dobson, 78 N. Y. 74; Schmittler v. Simon, 114 id. 177: 1 Greenl. Ev., § 227, et seq. The parol evidence was not admitted to limit the guaranty to a part of the product of the Scott grinders, which the parties had in mind, but to show the particular grinders referred to, and their capacity, and that the contract related to grinders of that description. Oct. 11, 1892. Bagley & Sewall Co. v. Saranac River Pulp & Paper Co. Opinion by Andrews, J. 16 N. Y. Supp. 657, affirmed.

INJUNCTION-BOND-JUDGMENT AGAINST SURETIES. -Where an action is brought for an injunction, and a preliminary injunction is granted, a dismissal of the action and a dissolution of the injunction, because of contempt of plaintiff in interfering with the commissioner appointed to take evidence, is not an adjudication that plaintiff had no right to such preliminary injunction, and defendant is not entitled to an order of reference to ascertain and assess his damages on the injunction bond. Palmer v. Foley, 71 N. Y. 106; Johnson v. Elwood, 82 id. 363. Nov. 29, 1892. Appollinaris Co., Limited, v. Venable. Opinion by Andrews, J. 18 N. Y. Supp. 535, reversed.

plication for membership, and has never stated his true age, the fact that pending an investigation of the matter by the society, which investigation is carried on with reasonable diligence, and results in his expulsion, assessments are levied against and paid by him, does not constitute a waiver of the right to expel him for his false statements, where up to the time of his expulsion the society had no legal proof that his age had been falsely stated. Oct. 11, 1892. Preuster v. Supreme Council of Order of Chosen Friends. Opinion by Finch, J. 15 N. Y. Supp. 41, affirmed.

JUSTICES OF SUPREME COURT-COMPENSATION.— The Constitution, article 6, section 13, provides that the compensation of judges of the Court of Appeals and justices of the Supreme Court, whose terms are abridged by their having reached the age of seventy years, shall be continued through the remainder of the term for which they were elected. Held, that such compensation does not include the yearly sum allowed by the board of supervisors of Kings county, in pursuance of authority conferred by the Laws of 1866, chapter 821, to justices of the Supreme Court residing in that county, for superintending the drawing of jurors, and that a justice whose term of office had expired by reason of the age limitation was not entitled to recover such allowance. The word " compensation" is used in both sections 13 and 14 of the article. In the latter section it is provided that "the judges and justices hereinbefore mentioned shall receive for their services a compensation to be established by law, which shall not be diminished during their official terms." The compensation which was to be continued is obviously the same compensation mentioned in the next section, and which is to be established by law, and not diminished during the official term of the incumbent. The Constitution, in using the words "compensation to be established by law," did not contemplate a resolution judge for local services as member of a board which of a municipal body fixing the compensation of a could as well be performed by any other officer. When the amendment of 1880 was adopted the word "compensation" had been in the judiciary article for ten years, and was understood to mean the salary of the judge as such, and the allowance for expenses; and it is quite unreasonable to suppose that either the fram. ers of the amendment or the people in adopting it had in mind the allowance which a municipality or board might, in its discretion, award to a judge for local services as member of a board for drawing jurors. Neither the language nor the purpose of the amendment would justify the conclusion that the retiring judge was secured the payment of such a sum of money for years after he became disqualified to perform the duties by reason of the vacation of his office. It would seem to be a fair test of the question whether