Nye v. Taunton Branch Railroad

Endicott, J. The demandant had an inchoate right of dower in this land at the time it was conveyed by deed in common form to the tenant. Upon the decease of her husband she became entitled to have her dower in the same assigned to her, unless she had been lawfully barred thereof. Gen. Sts. c. 90, § 1. It is claimed by the tenant that she is barred, because when her right became consummate, the land had already been taken for a public use, in a manner authorized by law. Two methods are pointed out in the Gen. Sts. c. 63, § 19, for the taking of land by a railroad corporation, for making and securing its road, and for depot and station purposes without the [279] limits of the road: First, by purchase and conveyance from the owner • Second, if the owner refuses to sell, by application to the county commissioners and the assessment of damages. By the first method the corporation obtains a fee in the soil; by the second the land is condemned to a servitude, and an easement is created in the corporation, which may be permanent in its nature and practically exclusive. Hazen v. Boston & Maine Railroad, 2 Gray, 574. When it holds by the first, it derives its title solely from the deed ; if the deed is without restriction, reservation or condition, the corporation may convey the land, if no longer necessary for its purposes ; when it takes by the second, if the use is abandoned, the easement is extinguished, and the land reverts to the owner of the soil. The one is simply an authority to buy and hold land for certain purposes, as a natural person may do ; the other puts the land into the possession of the corporation by the exercise of the power of eminent domain. The proceedings are entirely distinct, the rights acquired are different, and it does not change the character of the deed, because the land could have been taken against the will of the grantor. But it is not necessary to consider that question here, or to decide what would have been the effect upon the demandant’s right of dower, if the land had been taken, against the consent of the owner, on application to the county commissioners in the exercise of the power of eminent domain. As the statute authorized the purchase for the purposes therein named, the land did rot pass to the tenant under the exercise of the right of eminent domain accompanied by such powers and limitations as the exercise of that right imposes, but by deed subject to all the incidents attending that form of contract between parties. The land was at that time subject to the demandant’s inchoate right of dower, which is now consummate by the death of her husband, and the purposes to which the corporation has in the mean time devoted the land are immaterial, as it may change them at will, and sell the land if it desires. The ruling, therefore, in the court below was correct, and the demandant is entitled to her dower. If the estate cannot be divided without damage to the whole, the dower may be assigned out of the rents and profits. Gen. Sts. c. 90, § 5. Judgment for the demandant.