32 Pa. Super. 452 | Pa. Super. Ct. | 1907
Opinion by
The Clearfield and Mahoning Railway Company was duly
The railroad company derived its right to appropriate private lands over which it located its line, upon paying or securing
The constitution requires that compensation be made to the owner of property taken or injured, and the statute requires that the agreement as to the amount of the compensation shall be made with the owner, and in the event of a failure to agree that proceedings to determine the amount of the damages shall he in the name of the owner. It is only the owner who is entitled to compensation. “ It is true that it has been held, that one who holds less than a fee simple in the land is an owner
The inchoate dower of a wife may be defeated by the exercise of eminent domain during the life of the husband: Washburn on Real Property, book 1, page 220, section 37. The estate of the widow after assignment of dower is a continuation of the estate of her deceased husband. It follows that, while living, he as owner, is entitled to and represents the absolute fee. Dower inchoate is not an estate in the land but a mere contingent claim, and is defeated by proceedings to appropriate the land to public use during the life of the husband: Moore v. City of New York, 8 N. Y. 110; Duncan v. City of Terre Haute, 85 Indiana, 104; Venable v. Wabash Western Ry. Co., 112 Missouri, 103 (20 S. W. Repr. 493) ; Gwynne v. Cincinnati, 3 Ohio, 24; Thurber v. Townsend, 22 N. Y. 517. When lands are dedicated to public use by the husband, or by a legal proceeding to which he is a party, the same result follows. “ Here, in this commonwealth, laws have been passed from time to time, altering our statute of distributions, and altering the manner of making wills. Those laws have been considered sound and good, if in operation at the time of the decedent’s death, no matter whose inchoate interests are affected. The legislature might at their discretion annul the common-law right of dower, and repeal the statute of wills. There is no constitutional provision guarding the conunon-law right of dower; it is not part
The judgment is affirmed.