96 Ky. 401 | Ky. Ct. App. | 1895
bsiiviebd thb opikioir os the court.
By a writing of April, 1886, the appellees, W. E. and Amanda S. Minor, in consideration of the benefits to be derived from the building of the appellant’s road, undertook to release, grant and convey to the appellant a strip of ground sixty feet in width through the farm of the appellee, Amanda S., situated on the Ohio river, in Breckinridge county. The conditions of the grant were that the road should run between the dwelling-house and the river, and not be nearer than three hundred feet from it. This deed of conveyance was signed by the appellees, who are husband and wife, and attested by two witnesses, but was not acknowledged before any officer or attempted to be put of record. The title of this land was then held under the following provision of the will of Daniel J. Stephens, the father of Amanda: “I will and devise the same to my son, James Gr. Stephens, in trust for the use and benefit of my said daughter, Amanda, her heirs, &c., forever, to be held by the said trustee for the sole, separate and exclusive use of my said daughter, free from the debts and other liabilities, control or disposition of any husband she may hereafter have. The said trustee is to permit the said Amanda to occupy or lease said land as she may think proper, and she is to direct and control the use and enjoyment of said land; the rents and profits of said land to be held as the land is held— for the separate use and benefit of said Amanda. The said James Gr. Stephens is to incur no responsibility, nor be in any wise liable on account of his trusteeship aforesaid, as it is my desire that my daughter
Shortly after the execution of the writing named, the appellant entered on the land and built the road as required by it, between the dwelling-house and the river, but within about one hundred feet of the former.
This action was thereupon brought by Stephens, trustee, the Minors uniting, for damages by reason of the construction of the road. Upon the trial, the sole question submitted to the jury was how much, if any, was the market value of the farm reduced because of that construction? The appellees recovered the sum of ten thousand dollars. The appellant insists, on this appeal, that the appellees were entitled to recover nothing. First, because the acts of the Minors in executing the writing and consenting or ac•quescing in having the road built nearer than three hundred feet to the house, as is alleged they did do, constituted an estoppel; and second, because their acts constituted a dedication to the railroad company of the right of way. That while the title did not pass, yet an easement was acquired.
As to the first question, we are aware of no case in which it has been held that a married woman is estopped from asserting title to her lands except on the ground of fraud. She can be divested of her interest only in the mode pointed out by the statute. She is supposed to be under the dominion of the husband and incapable of contracting. When executing conveyances, she must acknowledge them sep
The case is to be determined as if she never signed the instrument.- We may .conclude that she stood by and, without objection, acquiesced in the subjection of the land to the uses of the road, and for obvious reasons she can not require the company to tear up its track and quit the occupancy of the premises. This she is not asking. She is not charged with the perpetration of any fraud or misrepresentation. If she has attempted to convey her lands and failed to do so in the manner required by the statute, it is as if she had not made the attempt.
If, by reason of her signing this writing, the company was induced to build its road along the route taken rather than along some other route, as is alleged and as is probable, still no fraud is chargeable to the wife, or concealment of any fact.
She has not legally parted with any right, and is not estopped in the assertion of any by her void contract, or by her conduct. Kennedy v. Ten Broeck, 11 Bush, 241; Bigelow on Estoppel (3d ed.), 484.
The second question is thus disposed of by the Superior Court in a well considered opinion: “A dedication of real estate to a public use may be made by parol; but there is no such thing as a parol dedication of real estate to a private use. A railroad
This position is supported by the case of Todd v. Pittsburg, &c., R’y Co., 19 Ohio St., 514, where, in speaking of this subject, the court said: “Its road, its rights of way, its depots, its offices, its rolling stock, &c., are all, not public, but private property. They are owned by the defendant. But among the various methods by which private property may be acquired, dedication is not one. The statute provides that railroad companies may acquire sites for depots, &c., by donation, by purchase or by appropriation. In the case of a donation or purchase, a formal conveyance is necessary to pass title. * But no provision is made for acquisition by dedication. It is but a fallacy to suppose that there is a dedication in the case merely because the defendant, for its own gain, has assumed toward the public the relation of a common carrier.”
The fact that the legal title to the land in controversy was not in the Minors, makes still less probable the company’s contention that the writing vested it with any title to or right of way over the disputed premises.
Judgment affirmed.
