castle in England. It could yield nothing to the support of the widow, by a direct participation in the possession, without such an interference with the public right to control the whole subject, as to render its enjoyment inconvenient and unsafe, if not impossible."

4. In the above case there was no exercise of the right of eminent domain. The title of the public was derived solely from the dedication of the lands to public uses by the husband, and the acceptance thereof by the public authorities. But in Moore v. The City of New York,' where a similar decision was made, and where the property involved was of great value, the land had been taken by the city authorities, for the purposes of a public market, by virtue of an act of the legislature. Under this act, commissioners of estimate and assessment were duly appointed, who proceeded, in the performance of their duties, and estimated the amounts due to the several owners of the land. Their report was confirmed by the proper authority. The amount awarded to the husband of the claimant for dower, as the entire value of the land belonging to him, required for the market, was paid to him. The law provided that upon the confirmation of the report, the land included in it should vest in the corporation of the city, in fee simple absolute. It was held that by these proceedings the contingent right of dower was divested. "The question which is here presented," the court said, "is whether a wife has such an interest in the premises owned by her husband, while her right of dower is inchoate, as can not be divested by this act of the legislature and the proceedings under it. . . . The right being merely an incident to the marriage relation, it seems to us that while this right is thus inchoate, and before it has become vested by the death of the husband, any regulation of it may be made by the legislature, though its operation is, in effect, to divest the right; the marriage relation itself being within the power of the legislature to modify, or even abolish it. The power of the State to take private property for public uses, results from its right of eminent domain, and that power is not restricted, except by the constitutional provision that just compensation shall be made to the owner. In this case the husband was deemed to be the owner of the entire estate in the land, and the inchoate right of the

1 Gwynne v. Cincinnati, 3 Ohio, 24.

2 Moore v. The City of N. Y., 4 Sandf. S. C. Rep. 456; s. c. 4 Selden, 110.

wife was not considered by the commissioners, and we think justly so, as an interest distinct from that of her husband, as the subject of estimate as to its value, separate from his. Indeed, the value of her interest, such as it was, would seem to be scarcely capable of being estimated as a separate interest. We see no reason to doubt that the commissioners were right in considering the entire estate in these lands as vested in the husband, and that he having been paid the full value of them, the corporation, by force of the act, became seised of the lands in fee simple absolute, discharged of any claim of dower of the wife therein."

5. The case was carried to the Court of Appeals, where the judgment of the Superior Court was affirmed. "The estate of the widow," said Gardiner, J., who delivered the opinion of the court, "after assignment of dower, is a continuation of the estate of her deceased husband. It follows that, while living, he, as owner, is entitled to, and represents the entire fee. This the statute vests, on confirmation of the report of the commissioners, and concludes all those entitled to the land, and all other persons whomsoever. Mrs. Moore at the time of the proceedings to appropriate the real estate, was not, as we have seen, entitled to it, but her husband; and she was concluded by the general language of the act, if the statute was not in contravention of the provision of the Constitution of the United States, which prohibits the State from passing any law impairing the obligation of contracts. Dower is not the result of contract, but a positive institution of the State, founded on reasons of public policy. . . . In the case under consideration the land was taken against the consent of the husband, by an act of sovereignty, for the public benefit. The only person owning and representing the fee was compensated by being paid its full value. The wife had no interest in the land, and the possibility which she did possess was incapable of being estimated with any degree of accuracy. Under these circumstances the legislature had the power, which I think they have rightfully exercised, to direct that the value of the entire fee should be paid to the husband of the appellant; and that the corporation, by such payment, in pursuance of the statute, has acquired an indefeasible title to the premises.' These views were referred to and approved by

Moore v. City of N. Y., 4 Sandf. S. C. Rep. 456, 460. [Followed in Matter of Central Park Extension, 16 Abb. Pr. 54, 69.]

2 Moore v. City of N. Y., 4 Selden, 110. [When land is taken for public use after

the Supreme Court of Ohio in a case recently determined in that State.1

6. The doctrine under consideration has also been extended to the case of lands appropriated by a railroad company for the purposes of their road, under authority of law. This point arose in the case of The Little Miami Railroad Company v. Jones, decided by the Superior Court of Cincinnati, in General Term. "By the appropriation of the property in question to the use of the defendants," and Storer, J., "in the mode prescribed by the statute, a perpetual servitude at least, over the premises, was acquired by the railroad company, subject only to be divested by a forfeiture of their corporate franchise on the judgment of a competent court. Until then the unrestricted possession is not only indispensable for the purposes of the road, but is alone consistent with the paramount right of eminent domain which had been imparted by the State through the legislature. This right, which is an attribute of sovereignty, is necessarily paramount to the claim of the private citizen, and when exerted, it compels the owner to part with his estate for a price to be adjudged by a jury, thereby changing his estate from land into money, and as a full price is required to be paid by the constitution of Ohio, without reference to any benefit the contemplated improvement may confer, the condemnation of the land was therefore doubtless intended, as it must necessarily do, to confer the whole title upon the corporation, who have paid the assessed value. Such would be the result where the State should directly assert her power, and appropriate, as she has done, the lands of the citizen for navigable canals, or any

the husband's death, the vested dower interest of the widow is transferred to the fund awarded as damages, and a proper portion of it may be secured to her. Bonner v. Peterson, 44 Ill. 253; French v. Lord, 69 Me. 537. In the latter case the court expressed the opinion that where the land is taken during the husband's lifetime by the right of eminent domain, the inchoate dower interest of the wife is too uncertain to admit of compensation, and that the husband alone must be regarded as owner of the entire estate, and all of the money awarded as damages paid to him. In New Jersey a different rule prevails, and it has been there declared that the inchoate dower is only divested as to the State, and that the wife has an interest in the damages awarded which a Court of Equity will secure to her. Wheeler v. Kirtland, 27 N. J. Eq. 534.] 1 Weaver v. Gregg, 6 Ohio State R. 547. See ante, ch. 16, 27-31.

2 Little Miami Railroad Co. v. Jones, 5 Weekly Law Gaz. N. s. p. 5. [A deed of conveyance to a railroad company made by the husband in pursuance of a purchase by the corporation authorized by statute does not divest dower, and it is immaterial that the land could have been taken against the husband's will. Nye v. Taunton Branch Railroad Co., 113 Mass. 277.]

other public improvement, and we can discover no reason why the same rule should not hold where the railway company, upon whom the power has been conferred by its charter' to enter upon and take such real property as should be necessary for the construction of their road,' have exerted that power in the mode defined by law, submitted to the judgment of the court, and receive the possession of the land thereby appropri ated. On this hypothesis the husband does not alien his estate, as in the case of a sale to a purchaser, nor is it taken to satisfy his debts, in both of which cases dower would still remain, but he is said to lose his estate, or rather to part with it in invitum. He could not have prevented the act of the law transferring his realty, nor yet contest the mode of its execution. An exercise of sovereign power by the body, in which for all the purposes of maintaining civil government, it necessarily rests, which existed before any title to property could be said to pass to individuals, as in case of escheat, it becomes reinvested with his title, and may be therefore said, in some sense, to have originally imparted it, must include within the alienation it compels, the entire title. The land is conveyed, and those who represent it must consequently be deprived of their several rights if they are made parties to the proceeding by which it is appropriated: a fortiori where there is no perfect right in esse, but the possibility only, of a future claim."

7. The rule fairly deducible from these authorities would seem to exclude dower in all cases where lands are dedicated to the public for a legitimate purpose, and the public have acquired a right to the enjoyment thereof, or where they are lawfully appropriated in virtue of the right of eminent domain. The reasoning of the courts appears to apply as well where lands are granted and used for public parks, public libraries, or other public use of a like character, as where they are devoted to the purposes of a market-place or a public highway. And it is difficult to discern any good ground for a distinction between the two classes of cases. In some of the States burial grounds are expressly exempted from dower by statute.

Little Miami Railroad Co. v. Jones, 5 Weekly Law Gaz. N. s. pp. 5, 7.

21 Washb. Real Prop. 221, 37; Walker's Amer. Law, 2d ed. 315. The subject of the legislative power over the right of dower, incidentally considered in the text, will be further treated in the second volume. See Melizet's Appeal, 17 Pa. St. 449; Kennerly v. Misso. Ins. Co., 11 Misso. 204; Strong v. Clem, 12 Ind. 37; Giles v. Guillion, 13 Ind. 487; Noel v. Ewing, 9 Ind. 37.

CHAPTER XXVIII.

DOWER AS AFFECTED BY ACTS OF THE HUSBAND PRIOR TO THE MARRIAGE.

Alienation before marriage defeats dower.

1. As the wife is only dowable of such estate as the husband was seised or possessed of at some period during the coverture, it follows that any effectual alienation by him prior to the marriage, places the estate beyond the reach of the wife, and prevents a right of dower from attaching in her behalf.1

Rule where the alienation does not become fully operative until after marriage.

2. Instances may occur in which an alienation by the husband, though made before the marriage, fails to become fully operative until after the marriage, and yet the right of dower attaching in the interim, be avoided by force of the doctrine of relation. A case put by Sheppard affords an example of this:

1 See ante, ch. 1, ? 22; Park, Dow. 24, 231. A widow is barred of dower in land conveyed by her husband before the marriage, although the deed has not been registered. Richardson v. Skolfield, 45 Maine, 389. [And she cannot have a conveyance set aside because it was fraudulent as to creditors, if no fraud was committed as to her. King v. King, 61 Ala. 479.]