O'Flaherty v. Sutton

Wagner, Judge, delivered -the opinion of the court. This was an action commenced by the plaintiff to have dower assigned to her in a tract of land consisting of twenty acres, which was owned by her husband at the time of his death. Commission [585] ers were appointed who set out to the plaintiff her proper portion, and their report was approved, and to that there is no objection. The tract was timbered land, and not inclosed or in cultivation. A jury was impaneled to assess the damages, and, under the instructions of the court, found a verdict for the defendant. The giving and refusing of instructions is assigned for error. The first instruction asked by the plaintiff and refused is, in substance, the same as the one which was condemned by this court in the case of Reilly v. Bates, 40 Mo. 468. The court, of its own motion, gave an instruction which we think covered the whole case and submitted the issue fairly. It told the jury that the plaintiff was entitled to recover damages for the detention of her dower, and it was their duty in assessing such damages to find from the evidence in the cause what was the reasonable net yearly value of the land without reference to any improvements, after deducting the taxes, if the same had been reasonably used by the owner, and to allow the plaintiff one-third of the net sum. This instruction is in exact conformity with the rule laid down in Thomas v. Mallinckrodt, 43 Mo. 58. It imposes on the owner of the land the duty of making .it reasonably productive, so that the widow shall obtain her proportionate share, if any is due her, by fair management. But in the very nature of -things the law could go no further. There is no rule by which the measure of improvements or productiveness could be fixed. Adaptability and circumstances must govern each particular case. It matters not whether the property is actually used. The true criterion is, what is the yearly value if the property had been reasonably used by the party in possession holding the title. This view was fairly taken, and I am unable to see that the court committed any error. Judgment affirmed. The other judges concur.