*1 SUPREME COURT OP City. Harris v. Kansas judgment and do Circuit reverse the Court for City remand the cause to said court and principles trial stated. accordance with the herein Ragland, Small and concur. GC., opinion foregoing PER Brown, CURIAM:—The by adopted opinion is court. C., All of judges concur. Appellant,

ANNA HARRIS, WOOD CITY, KANSAS Appellant. April One, Division Municipal System. 1. PUBLIC USE: Land Devoted to Water Works furnishing water, by system waterworks, means of a municipality inhabitants, public use, a and its is land used a integral part system use, an of such is devoted to a by private organized whether a be done that purpose operating municipality, under a franchise by municipality or itself. firmly 2. -: -: Dower. The is established this doctrine right suspended, extinguish- State that the inchoate is or ed, appropriated, law, according the forms lands by public, prescription, whether uses ofthe such arises through by coupled pais accept- dedication deed or acts in with by ance, condemnation, conveyance simple an followed appropriation actual such use. -- n : Conveyance 3. -: -: in Fee: Easement Condem- in'fee, acquired nation. The fact defendant’s title was one conveyance (cid:127)by power deeds of condemnation under the domain, give presently of eminent did not assigned being have in such while her dower land it was used system, of such waterworks even if it were conceded company by proceedings such waterworks under (Laws 1881, p. 45) the Act fee, land and as it such was the use easement’ to which prevented plaintiff’s having devoted that such land was assigned* such and not the title therein which such land was held.

-: -: Easement or Fee: Dower. It seems that where taken, taken, fee in land is authorized to be is under 293 Mo.] OCTOBER TERM, 1921. domain, therein, any, eminent the inchoate of dower if extinguished. merely ought Where an easement to be held, principle, abrogated, that such of dower is not but *2 merely suspended during period of the servitude. And where municipal public corporation by deed, a or service secured a fee acquire only

when under its charter it could an easement, dpwer an inchoate in the land should not be adversely thereby more affected than had the use been domain, taken under the of eminent of dower yields only to the extent for the full exercise of the paramount public right; given public and the which extent to a requires extinguishment private of an owner’s title and' rights thereto, solely determine, incident to respect and its intention is to be deduced from the act authorizing condemnation. Appeal from Jackson Circuit Court!—Hon. Thomas B. Judge.

Buchner, Reversed.

Joseph plaintiff. Rust 8.

(1) may There a use, or, more properly, in land property such, used as where the out of which the use is claimed has not been in one of ways pointed (2) out or law decisions. Don- subject plaintiff’s nell took the fee to dower, did also Company city. the Water and the The two latter did not take mere easement, therefore the idea application that there is dower public no easement has no here. service Where takes deed purporting convey to fee, holds can sell and convey something the fee unless there is in its charter acquire expressly excluding fee, and hold the Company not the case as as was to the Water Works city. and the Chambers v. 29 Mo. 543; Baker Ry., 406Mo. R. S. 1919, sec. Note, City p. (3) Charter, 1909, 98. The widow is not deprived simple of her dower fact that the land being-used has been taken and is for some use. It properly must have been in one of the modes OF SUPREME COURT pointed in some manner her interest law; ont represented. Her interest cannot be have been said must represented, her was sold been where husband expressly deed, under a which stated that out sheriff’s conveyed only (4) his interest. Dower is not mere right and It is substantial the courts shadow. one which a. resolving protect greatest jealousy, with doubt favor of the widow. Blevins Smith, doubtful cases (5) deprived will not be Mo. widow of her party-to represented in or the in- unless she is proceeding strument transaction under which her extinguished. to have been dower is claimed All the theory. Railway, cases are Venable v. based on (6) Railway, Mo. 124. In the case Choteau v. 122 Mo. chiefly rely, 375, on which defendant seems the hus- convey purported band deed the entire title, ’s *3 think) (improperly court held that the in as we husband public presumed repre- be that, case, would to have compensation her and to have sented received her presumption interest, in that but this case cannot only purported be entertained because the sheriff’s deed (cid:127) convey (7) the husband’s interest.- This case is dis- tinguished right-of-way from the railroad cases, because only in those cases of the land was and dower says, could, court be allowed out of the remainder (8) distinguished of the tract. case This must also be right-of-way cases, the railroad because the way required particular strip that land, but it can- particular not be held that these lots were city place pipe, for a store old therefore the question public necessities of the in does arise pur- case. other lot this Some would have answered poses company city. (9) of the water works distinguished This case must be from the Chouteau Case because it in was held railroad had case an easement and that there dower in no city subject only easement. In has case at bar the the fee to this dower. 1921. 575 TEEM, Mo.]

293 OCTOBEB v. Harris Fyke Hayward A. Harber, M. Francis M.

E. M. defendant. for. refusing

(1) court erred in in- defendant’s which, were 2, structions 1 and to the effect that undisputed evidence under the was entitled question, (a) supplying city 'The in the land ato is a Lewis on Em. town use. sec. Dom., water 267; Cummings 104; v. 27 Ala. Stein, (cid:127)Burden v. Peters, 56 182; v. 62 Cal. 593; Forbes, Cal. Water Biche Co. v. Bar Mayor, Me. Kane v. 15 Works, 91; Harbor 75 Md. 240; Wayland Gray, County 4 Comm., 500; Lumbard v. v. Aqueduct, 4 Cush. Olmstead v. Stearns, 60; Morris 46 311; N. L. 495, L. 47 N. J. Co. Bird, J. v. .Waterworks Stanley, Y. 249; 130 N. Water v. 39 Hun. 424; Co. Mat- 525; 46 Hun. Bochelle, ter of v. New Witcher W. Co-., W. n (b) 619; Eauclaire, State v. 533. Hun. Wis. And Ey. there no dower use. can be Chouteau v. Ey. 375; 122 Mo. Baker v. 122 Mo. Co., Co., 396; Vena- 112 Mo. Eailroad, 103; ble v. Christman v. Lindeman, v. 202 Mo. Benton 217 Mo. Moore Gwynne Mayor, v. 8 N. Y. 110; v. Cincinnati, Ohio, 24; City, Canty Duncan Ind. 104; Latterner, v. 31 Minn. Swinney, 239; Eailroad 38 Iowa, 182. is a

EAGLAND, C.—This suit for dower. The hus- plaintiff, band of John S. Harris, June 1873, 7, seized fee of the real estate which she now claims February dower. He died June 7, 1873,

On interest of Harris the land *4 conveyed by was sold under execution and sheriff’s deed May Donnell; 20, to E. W. 1884, Donnell and wife conveyed by warranty deed the National Water Company, a of the (here- State of York New company). inafter referred the to as Under its charter company empowered and the laws of New the York, was establish, to- construct and maintain water works in or adjacent any city, village town, States, in the United supply city, village, and to such town or and the in- habitants thereof with water. authority Under the con- OF SUPREME COURT City. v. Kansas

Harris passed special in 1873 the act of ferred approved City by 286), (Laws p. ordinance, Kansas 1873, duly popular au- vote, and ratified 1873, 27, October period operate acquire company for and thorized the City, system twenty years of of waterworks furnishing purpose inhabitants its Missouri, buildings maintain all and ma- and to erect and water, city the chinery therefor, re- suitable property purchase serving the entire con- the accepted stituting The ordinance was such waterworks. company 1873. 31, the October company acquired, constructed the Within due time conformably put operation to the into waterworks arrangement provisions some the ordinance. Under possession of the into Donnell, with the went owner, ground in 1880. The claimed, lot which dower now along and extended back Street, on Main fronted 80 feet alley. was a small There Second 142 feet to Street two-story building The on it and also stable. brick premises fence. The stable was with a were enclosed storage company yard for its horses, used pipes, building a meter brick of cast-iron and the shop. property department uses These and work long company owned it. continued provisions of the ordinance In with the accordance pursuant to a decree of the to, heretofore referred Di- for the Western Circuit Court of the States United company, Missouri, vision of District the Western comprising conveyed property all sold and 1895, system including deeded it the lot waterworks, city After the to Kansas D'onnell, integral the lot as an continued waterworks it using system, the time so- at of the September, city erected thereon In trial, covering practi- two-story building brick a substantial cally approximately at a cost lot, of the whole $40,000. improvements ground was valued without yearly rental and the

by plaintiff’s $40,000, at witnesses *5 Mo.] 293 OCTOBER TERM, City. $2400; at defendant’s witnesses the valued land at from the to annual rental $11,360 $14,200, at 'from $681 to $852. premises, in demanded dower

Plaintiff the April Harris, deceased, widow of John S. 1, 1897. jury plaintiff A waived. court was The found that improve- in was entitled to dower the land but not the that the yearly ments, and reasonable rental ex- value, improvements, thereupon clusive of It ad- $1200. judged plaintiff that recover for the detention of her ($400 year the $9,104.38 sum the time interest), to of the demand the date of the decree, without per and in addition annum thereto her nat- $400 premises life, ural and that she have lien on the to se- payment cure thereof. parties appealed.

Both Defendant contends is not entitled to dower at all. insists She (1) excluding that the trial was in error: court improvements admeasuring value her dower profits; (2) allowing out rents and her payments equal interest on annual one-third — yearly premises they rental value of the times —from should have been made, after demand of dower part damages decree, date as a of her de- tention. question presented ap- on

I. defendant’s peal plaintiff may whether assert dower in with, land in use defendant in connection Dower. system. as a of, its waterworks devoting That the use which the defendant is ’ open question. land is a [Lewis use is Wayland County Domain, Eminent sec. Commis sioners, 70 Mass. Pocantico Water Co. Bird, 249.] 130 N. Y. Before Public Use: Land Devoted acquisition by its defendant it had been Waterworks, to: appropriated pre a similar use Company. decessor, the National Water Works In recognition supplying city, fact town, of a Sup.

293 Mo. n OP COURT SUPREME

Harris v. village with water p. (Laws 45) authorizing passed act *6 proposing corporation, company or to so en- individual, acquire by supplying gage water, in “to upon pump- which build works sufficient lands storage, management ing, distribution and of water.” firmly in established this State,

The doctrine is jurisdictions, other that .the inchoate in most extinguished, suspended, appropri- in lands is according to the law, to the forms ated, uses public. Mo. [Benton 687; v. 217 Chouteau v. 122 Railroad, 122 Baker Railroad, Mo. Mo. 103.] it Railroad, Mo. And makes Venable no by prescription, difference whether use arises through pais coupled by deed or acts dedication with by by simple acceptance, conveyance condemnation, or by appropriation actual followed an such use. The principles giving as'applied rule, to the rise in this State, fully just have been so set forth the cases cited that a supereroga- now be a work discussion of them would tion. distinguish

Plaintiff contends that the at bar case is any able on the facts from of those cited, this: The only taking Act of authorized the an easement in by supplying lands to be used cities with Company water, whereas, the National' Water open acquired deed, Donnell without restriction any kind a fee in the land, encumbered plaintiff’s with inchoate that it dower; could, therefore, abandoned the use of it its have as conveyed of waterworks any just sold time, it, fee, at as private holding, any other and that defendant company acquired deed from the a like title. It is undoubtedly company through true that the its deed from acquired conveyed Donnell the fee and that it in turn may defendant, and it be that neither of fee them could acquired more than easement condemnation. sjich apparent But, can so, even is how facts present avail to her claim of a 293 Mo.] OCTOBEE TEEM, 1921.

of dower. The nature of successively the title company important only the defendant is respect sufficiency with to its to authorize each of them appropriate the land to the use it did. Each had the right under the title it obtained to devote the land to a use, and the continuance of such use dower assigned can not be therein —that is, dower that was in choate at the time of the commencement of the use. The very clearly separate rule is opinion set forth in the J., in Chouteau v. Railroad, Mo. l. c. 393, Barclay, 395: wholly may

“It immaterial what be the estate corporation invoking of eminent domain. long property So lawfully public pur- in use for poses, no of dower can be asserted to interfere with *7 paramount right public. the of the provisions

“We conclude that, the under of our apparent plainly right statutes, it is that no of dower, plaintiff against property such can be claims, asserted duly acquired by actually deed, or condemnation, and public regulation use; devoted to that such a and or of, upon, right limitation inchoate of dower is valid, and not any provision organic in violation of of the law.” question, It follows that the land in since its con- veyance by rightfully been, Donnell, has and now is, de- public voted to a use, cannot demand dower (cid:127) therein. . in power

Where fee land is authorized to be taken, is and the eminent taken, domain, under the inchoate any, extinguished. right dower, is therein, if Where ought merely prin an easement is to be on held, ciple, right abrogated, that such of dower is but mere period suspended during ly the the servitude. And municipal public or service where a secures acquire deed, under its charter a fee when only easement, inchoate adversely be in the should not more af land thereby only under, been taken had the use fected than power the This, because of eminent domain. the SUPREME OF COURT y. Harris yields necessary full to extent ex paramount public right; ercise extent to requires given extinguishment use which rights private an solely incident owner’s is title, thereto, intention determine, respect authorizing in that deduced from act [Brooklyn Armstrong, Park Comm. v. condemnation. ] 45 Y.N. 234. Company, un- Whether the National Water Works acquire by authorized the Act of con- der it to the fee land take and demnation operation of the with the waterworks connection City, on such is conferred de- at Kansas whether plaintiff’s charter, and whether in- under its fendant extinguished, merely or is been choate of dower has suspended time that the land which it ques- are be, devoted is, claimed shall decide, do not because aris- however, tions, which we premise ing this be- before us. We much on record by plaintiff in that the land her brief it is asserted cause' conveyed appropri- defendant and has been sold private cause below. since the trial this uses ated expressed that the views herein follows from It be reversed. have to judgment court will circuit It ordered. is so disposition the case de- made of on

In view of plaintiff’s ap- questions appeal, raised fendant’s appeal merely is there- have, Her peal academic. become *8 Brown, G., absent concurs; G., jfore Small, dismissed. opinion foregoing Rag- PER CURIAM:—The opinion hereby adopted court. the' land, C., is judges concur. All of