This was an action of trespass to try title, brought by Marie O. Grandjean against the City of San Antonio, to recover a parcel of real estate lying in said city and claimed by the city as a part of a street.
The city pleaded not guilty, and specially, that at one time the property belonged to the community estate of the plaintiff and Ulysses Grandjean, her husband, and that in a regular proceeding instituted against the husband for the purpose, the property had been condemned as a street and the damages assessed and paid. It also pleaded that after the attempted condemnation and assessment, the plaintiff, with a knowledge of the facts, had received one-half of the sum assessed, Ulysses Grandjean having received the other half. The defendant also made Ulysses Grandjean a party, and among other things prayed for, asked that, in the event the plaintiff should recover, it should have a judgment against him for the money paid him upon the assessment.
The case was tried without a jury, and the court gave judgment for the defendant, without filing conclusions of fact and law. Upon appeal, the Court of Civil Appeals reversed the judgment of the trial court and *Page 432 rendered judgment for the plaintiff for the property and for damages and rents, and that the city take nothing by its cross-action.
The Court of Civil Appeals found as a fact that, at the time of the attempted condemnation, the parcel of land in controversy was the separate property of the plaintiff, — whether correctly or not, in the view we take of the case, it is not necessary to determine. It was admitted that the proceedings for the condemnation of the property as a street, as against Ulysses Grandjean, were regular. The value of the property was assessed upon the condemnation, at $35,000. The treasurer of the city went to the husband, and, in the presence of the wife, tendered the money in payment of the property, but the husband, protesting against the taking of the property, declined to receive the compensation. The wife also declined. There was a conflict in the testimony as to what occurred at the interview, which it is not necessary to discuss in this connection. The report of the commissioners appointed to assess the property was made November 22, 1889. After the tender of the money had been declined, it was placed in bank to the credit of Ulysses Grandjean and Marie O. Grandjean. On the 17th day of December, 1889, Ulysses Grandjean accepted one-half of the sum and gave his receipt therefor. On January 4, 1890, the plaintiff drew her check for the other half and had it placed to her own credit in the bank; and subsequently, during the same year, drew it out in varying sums and appropriated it to her own use. In May, 1894, she and her husband were divorced; and in March, 1895, she brought this suit for the recovery of the property. The question is, can she, under these circumstances, reclaim the property?
If the rights of the parties were to be determined upon the principles governing ordinary conveyances of real estate, the separate property of a married woman, the point would not be difficult to resolve. The rule in this State, as in many other jurisdictions, is that the title of a feme covert to her real estate will neither pass nor be affected by her attempted conveyance, except by a deed duly acknowledged by her upon privy examination and duly certified. Neither a deed not duly acknowledged, nor the reception and appropriation by her of the consideration, nor her subsequent acts showing her acquiescence, nor all these together will estop her from asserting her title. A contrary rule would enable that to be done indirectly, which the statute declares shall be done only by a certain method, and would defeat the purpose of the law. But, does the transaction in question stand upon the footing of an ordinary conveyance? The City of San Antonio does not occupy the position of a private person who has contracted for the purchase of the land of a married woman, and who has paid her the consideration and taken possession of the property. Its attempt was to exercise the power conferred upon it by the State to take the property for the purpose of a street. The right to take private property for public use is necessary to government and inheres in every sovereignty. Whatever may be the theory as to the foundation of the right of eminent domain, *Page 433 everyone holds his property subject to that right. Enlightened governments provide always for compensation to the owner, and in our State, as in many others, the payment of the compensation is made a condition precedent to the taking. But, at last, it is essentially a right to take, and does not involve the necessity of any grant or conveyance on part of the owner, or of any judicial decree. Thompson v. Railway Co., 110 Mo., 161. Statutes for the condemnation of private property to a public use, may provide for compulsory conveyance by the owner or for passing the title by the decree of the tribunal authorized to assess the damages. Such conveyance or decree affords more permanent and satisfactory evidence of the expropriation, but the expropriation is complete without it. For example, when a city to which the power of taking property for a public use has been delegated by the State, through its council, ordains that certain property be taken for a street, and when the compensation has been assessed according to law or has been agreed upon between the authorities of the city and the owner, and has been paid by the former to the latter, the easement is established, and the title of the owner to that extent extinguished.
A private easement, as for a private right of way, even at common law, could only be conveyed by grant; and besides, being an interest in land, it is within the statute of frauds and must be conveyed in writing. Not so with a public way. The owner of land may dedicate a way over it for the use of the public. No writing is necessary to effect this result. When the owner by words or acts has clearly evinced an immediate intention to devote the way permanently to the use of the public, and the offer of dedication has been accepted, however informally, the dedication is complete, and he cannot revoke it. In such a case, it seems to us that there is no conveyance in the proper sense of the word; there is no express grantee, and we think it a fiction to assume, as is assumed by some authorities, that the city, county or quasi-corporation which may be by law entrusted with the control of the way or other easement is the grantee. It is generally said that the dedication operates by way of estoppel. In many cases the law of estoppel applies without doubt. A grantor, by conveying to his grantee a lot in a town or city, and in the description calling for a street upon which it is asserted to abut, may estop himself to deny, as against his grantee, that such a street exists, although the town or city may never accept it as such. On the other hand, we understand the law to be, that when a dedication is offered and accepted, it is complete, even before any act is done by the representative of the public which changes the position for the worse. If work be done upon the way or other easement, there is ground for holding the owner concluded. But it is hard to see how the use by the public of a road which has been tendered for such use, but upon which no labor has been expended, operates to the detriment of the public, and hence it is difficult to find in the facts any element of estoppel. Yet we understand the authorities to agree, that if the tender be unequivocal and the easement be used by the public, even without *Page 434 formal acceptance by the proper authority, the dedication becomes irrevocable. In Oswald v. Grenet, 22 Tex. 99, the court say: "Respecting what will amount to or may be received as evidence of a dedication, the law is too well settled to admit of controversy. A setting apart or dedication to a public use, to be effectual, need not be by deed; nor need it be evidenced by the use of it having been continued for any particular time; it is enough that there has been some clear, unequivocal act, or declaration of the proprietor, evidencing an intention to set it apart for a public use, and that others have acted in reference to and upon the faith of such manifestation of intention. If the act of dedication be unequivocal, it may take place immediately." All these propositions were not involved in that case, but they are too well established to require a citation of authority here to support them.
In cases in which there has been an attempt to condemn, but the proceedings are invalid for want of a compliance with the statute which authorized the condemnation, it is held that the owner, by accepting the condemnation assessed, makes the transaction effectual. Hartshorn v. Potroff, 89 Ill. 509. It follows that the grounds upon which the doctrine of dedication is ordinarily based, are unsatisfactory. In our opinion, the true principle is, that since the State has the inherent and paramount right to the property, when needed for public purposes, the determination by the proper authority that the necessity for the taking exists, the taking, and the adjustment with the owner of the question of compensation, however affected, completes the appropriation and devotes the property to the public use. The conditional paramount title of the government becomes absolute when the compensation is assessed or agreed upon and paid, or when its payment is waived. The doctrine of eminent domain implies that it is to be exercised against the will of the owner. It is his want of consent that renders its exercise necessary, and hence it is not consistent with the theory of the doctrine, that any conveyance from the owner or decree of court is essential to pass the title. The dissent of the owner to the taking is unavailing. His right under our Constitution, except as against the State itself, is to demand that before the property be taken, his compensation shall be paid. When he accepts as compensation a sum of money, whatever the amount and in whatever manner arrived at, his property, to the extent of the taking, is expropriated and appropriated to the use of the public. The question of compensation out of the way, he must yield to the inevitable. The State's right is to take or accept without a conveyance, and hence, when the compensation is adjusted, no conveyance is necessary.
The fundamental principle we have announced as applicable to this question is involved in those decisions which hold that where a railroad company, without either the consent of the owner or the condemnation of the property, has constructed its track over land of another, and subsequently seeks to condemn it, the owner is not entitled to compensation for the structures placed thereon by the company. Preston v. Railroad Co., *Page 435 70 Tex. 375, and cases cited. Ordinarily, whatever a trespasser annexes to the land of another becomes the property of the owner of the land; and hence the case of a railroad can only be distinguished upon the ground that the company had the original right to take the easement, and that the owner was merely entitled to the compensation, with the power to hold his property until the compensation should be properly assessed and paid.
Let us apply these principles to the present case. If Mrs. Grandjean had been sui juris when she drew the $17,500 out of the bank, it is clear that she could not reclaim the property. Does the fact of her cover-ture make a difference? Under our law, a married woman's separate property is hers in her own right. This right, except where restrained by statute, carries with it the power of alienation. Under the first section of the Act of April 30, 1846 (Pas. Dig., art. 1003), which applied to the land, slaves and other effects, the separate property of the wife," it was held that the wife, with the consent of her husband, might make a sale of her personal property without formality, provided the contract was not made in writing. Ballard v. Carmichael, 83 Tex. 355. Our present statute upon the subject applies to her real estate only. Rev. Stats., art. 635. Under that article, it was held by the former Caurt of Appeals, correctly as we think, that she could convey her personal property without privy examination and acknowledgment. By the word "conveyance," as used in the article last cited, is meant an instrument which purports to transfer the title of the wife to some other person natural or artificial, and since, as we have seen, a conveyance is not essential to the exercise of the right of eminent domain, — that the taking is a mere enforcement of the paramount title of the sovereignty for the public necessities, and a corresponding extinguishment of the title of the owner, — we are of opinion, that the statute does not apply. It is a case in which the power of the wife is unrestrained, save that the consent of her husband to the act may be required. In this case, the city council had declared that the property should be condemned for use as a street, and had caused the damages to be assessed. Mrs. Grandjean was not made a party to the proceedings, and was not bound by the assessment. But she had the election to take what was tendered her, or to decline it and take her chances upon a new assessment. She accepted one-half, the other half having been paid to her husband; and we think that she is bound by her election. Ardesoife v. Bennett, 2 Dick., 463; Willoughby v. Middleton, 2 John. H., 344; Sisson v. Giles, 11 Week. Rep., 558; Anderson v. Abbott, 23 Beav., 457. When the council had declared that the property should be condemned she had the right to her compensation, and she was, as we think, not disabled, with the consent of her husband, to waive the' invalidity of the proceedings taken to assess the compensation and to accept the whole or one-half in full satisfaction. Their consent and election is evidenced by their acceptance of the money and neither can now disaffirm their action.
As to the question whether or not a married woman may dedicate *Page 436 her land to a public use, the authorities are not quite clear. Judge Elliott, the author of the work on Roads and Streets, and formerly an Associate Justice of the Supreme Court of Indiana, says that the decisions of that State leave the matter in doubt. Elliott on Roads and Streets, 102. Some of the cases from that court seem to hold, that, as a general rule, a married woman cannot be estopped to claim her real estate in the absence of an intentional fraud, but in the case of the City of Indianapolis v. Kingsbury, 101 Ind. 200, a distinction is drawn, properly as we think, between an ordinary conveyance by a married woman and a dedication by her, and it is decided, as we understand it, that she may make a dedication without a deed privily acknowledged and certified. In Sebenley v. The Commonwealth, 36 Pa. St., 29, it is held that a married woman may make a dedication. In that case it appears that the land bad been dedicated for use as a street by a tenant for the term of twenty-one years. The reversioner was a woman, and was covert at the expiration of the lease. Its use as a street was continued without objection on her part for four years and a half after the term expired. In their opinion, the court say:
"That a tenant for years cannot bind his reversioner, by a dedication to public use, must be admitted, but it is not to be maintained that a, married woman may not dedicate her land for a public highway. Joining with her husband she may convey, and, therefore, a dedication, which is but a limited conveyance, may be presumed against her and her husband. Nor is it necessary to a dedication that there has been twenty-one years of adverse enjoyment, though it is to the presumption of a grant, when time alone is relied upon to raise it. Whenever there is an actual giving of land for a public highway, accepted by the public, though there be no deed, the dedication is complete. The period of twenty-one years of enjoyment, after which a presumption of a grant is made, is fixed from analogy to the statute of limitations; and for the same reason for which it is not permitted to add coverture to infancy, in order to avoid the running of the statute, must the fact of Mrs. Schenley's coverture after the expiration of Garrard's lease be of no consequence. The facts of the case, as proved and assumed by the defendants, are, that the street was opened in 1830, and devoted to use as a public highway. Grant that the dedication did not then bind Mrs. Schenley. The street continued open and in constant use until 1851, when the tenant's term expired. Then, instead of disavowing what be had done, instead of closing the street, and resuming her rights as the reversioner, she permitted the street to remain open and used by the public, four or five years longer, until after the grading and paving had been done, until after the costs and expenses had been incurred, and never, until the trial of this cause, has she pretended that it was not a permanent street. Under these circumstances, we cannot doubt, that the jury should have presumed a valid dedication, and that the court was right in so instructing them."
In New York, they have a statute which attempted to authorize the *Page 437 City of New York, in cases in which by the opening of streets fractions of lots were left, to condemn such fractions. The courts held that the statute, if intended to authorize a compulsory taking of such parcels, was unconstitutional; but that the Legislature had the power to authorize the taking by the city, with the owner's consent; and the latter construction was put upon the act. Under that construction it was held, that a married woman had the power to consent to the taking, and that no deed was necessary in such a case to operate a transfer of her property. Embury v. Conner, 3 N.Y. 511.
If the owner may dedicate his property for a public use by parol without compensation, he may certainly so dedicate it for a consideration paid at the time of the transaction. Rees v. The City of Chicago, 38 Ill. 322.
We conclude, that since Mrs. Grandjean elected to take one-half of the sum at which the property had been assessed, which half bad been tendered to her by the city, in satisfaction of her right, she cannot now reclaim the property, and that therefore, the judgment of the Court of Civil Appeals ought to be reversed, and that of the District Court ought to be affirmed, and it is ordered accordingly.
Judgment of Court of Civil Appeals reversed. Judgment of District Court affirmed.
Opinion delivered June 24, 1897.
DENMAN, Associate Justice, did not sit in this case.
Counsel for defendant in error filed a motion for rehearing, supported by brief and argument, upon which the written opinion following was rendered.
ON MOTION FOR REHEARING.
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