RANDALL v. TEXAS CENTRAL R. R. Co. (63 Texas, 586.) The husband may, without being joined by his wife, grant a right of way to a railroad company across a tract of land belonging to himself and wife and occupied by them as a homestead, when the use of the right of way by the railway does not materially affect the right of the wife to the enjoyment of the use and occupancy of the land for homestead purposes. ERROR from Bosque. Tried below before the Hon. Jo. Abbott. Trespass to try title by plaintiffs in error for the recovery of about eighty acres of land. The petition alleged that the land was community property and the homestead of the plaintiffs. The amended petition admitted the execution, by plaintiff N. B. Randall, of a deed conveying to defendant a right of way two hundred feet wide through the land, so far as he had right and power to convey, without the signature and consent and against the wishes of the wife, Jeannette Randall. The defendant disclaimed as to all the land sued for, except the right of way two hundred feet wide through the tract, and as to that pleaded not guilty and general denial. Also in abatement the joinder of Jeannette Randall and general demurrer, and disclaimed as to all right in the land conveyed by N. B. Randall's deed, except the right of way and privileges annexed under the general laws, and prayed that the damage done the land by appropriation of the right of way might be assessed by commission or otherwise, if it should be found that the railroad had not obtained a title to it. The court sustained defendant's demurrer to the petition. Alexander & Winter for defendant in error. WATTS, J.-Only one question is presented by this record for consideration and disposition, and that is as to the power of the husband, withont the consent and concurrence of the wife, to grant to a railroad company a right of way over or across a community property homestead." COMMUNITY When the fee to land is vested in the community property, ordinarily, for all practical purposes, it may be considered as vested in the husband, so long as the marriage relation exists. For, during the coverture, the husband generally has the unrestricted right to alienate or otherwise dispose of such property, in whatever manner or for whatever pur pose may to him seem proper. He is, during the coverture, practically the owner of the land. This ownership upon the part of the husband is neither destroyed nor impaired by reason of the fact that it may have become the homestead. Should it, by abandonment or otherwise, lose its homestead characteristics, it immediately becomes, as other community property, subject to the absolute dominion of the husband, and over which he has the power of disposition without the consent or concurrence of the wife. It is equally true of his separate property which has been clothed with the homestead quality; whenever it loses that characteristic his absolute right to convey or otherwise dispose of it cannot be questioned. RIGHT TO CON However, so long as the property is the homestead, whether it be the one or the other, the constitution and statute sus- HOMESTEAD pends the power of the husband to sell and convey it, VEY. without the concurrence and consent of the wife, given in the mode prescribed by law. By this suspension of the husband's power of alienation, it was intended to protect the wife and family in the quiet and uninterrupted possession and enjoyment of their home. MANAGE STEAD. MAY AND Nevertheless, the husband's right to manage and control the homestead, in any manner not inconsistent with the HUSBAND object and purpose of the protection, will not be dis- CONTROL HOMEputed. He may rent or lease a part or all of the homestead, without the consent of the wife, for a reasonable time. He also has the right to subject the property to such use as to him may seem best, provided the use does not destroy or materially affect it as a homestead. In providing for the exemption, it was never intended that the husband should be shorn of those recognized and natural rights which appertain to him as the head of the family, and the exercise of which is reasonably necessary in his providing for its maintenance. Upon him rests the obligation to support the family, and to him belongs the correlative right of controlling the property belonging to the marital partnership, in such manner as to him may seem best, without the necessity of securing the concurrence and consent of the wife, so that this right is not so exercised as to materially affect or destroy the homestead rights of the wife. In this respect the constitution and statutes are limitations upon the power of the husband to sell and convey property to which the homestead character has attached. OF WIFE TO GRANT WHEN USE OF If it was not for the inhibition, certainly the husband would have the power to sell and convey the community property CONSENT without the consent of the wife, notwithstanding they might be occupying it as a home. It is, therefore, only HOMESTEAD NOT to the extent intended by the limitation that the THEREBY AFFECTED husband is deprived of the power of control and disposition of community property possessing the homestead character. And the intention was only to hedge his power in this respect, where its exercise would materially affect the right of the wife to the enjoyment of the use and occupancy of the homestead. There can be no dispute as to the fact that the property was subject to the exercise of the right of eminent domain, whether it did or not possess the homestead quality. Now, suppose that the right of way had been regularly condemned; then, as it neither destroyed nor materially affected the property as a homestead, the damages assessed would have been paid to the husband, who could have used it at his pleasure, and that without any supervisory control by the courts. This being true, the right of the husband to contract with the company as to such reasonable right of way, without the consent of the wife, would seem to follow as a natural consequence. If the husband should attempt to so exercise this right as to destroy the homestead, or to materially affect it as such, upon proper application doubtless the courts would interpose through their equitable power to prevent the imposition. It is not true, as contended, that the wife's separate estate and a community property homestead occupy the same position in this respect. As to the separate property of the wife, the husband has no right whatever to sell and convey it; the property belongs to the wife, not to the husband; and the extent of his power is conferred by the statute-to manage and control; while, on the other hand, he has the unlimited power to sell and convey the community property, except as qualified by the homestead provisions of the constitution and statute. In the case of The T. & P. R. R. Co. v. Durrett, 57 Tex. 48, the want of authority upon the part of the husband to grant a right of way over the separate property of the wife, without her concurrence and consent as prescribed by statute, is clearly shown. But the principles announced in that case have no controlling influence upon the question now under consideration. In East Tennessee & Virginia R. R. Co. v. Love, 3 Head, 65, it is said: "The right to take land under the power of eminent domain is not restricted by any disabilities of the owner. That would defeat the object of the power, which is the public necessity to take it for the general good. The power of the State to appropriate the property is unquestioned, but the right of the owner to be paid for it is secured by the constitution. The power of the State is subject to no restrictions but that of making compensation. This inherent authority of the government to take private property for public use is exercised without any reference to the private ownership. The existence of infancy, coverture, or other disability presents no obstacle. The correlative constitutional right to de mand and receive the value of the property can only be asserted by the true owner." In a case like this, where the taking would neither destroy nor materially affect the property as a homestead, the husband, as the head of the family, must be considered the true owner of the land taken, and as such entitled to receive the value. Then there could be no sound objection to permitting him, under like circumstances, to contract with the company in regard to the right of way, subject to the limitation that he cannot thereby destroy the homestead or materially affect it as such. In the case of The Chicago, etc., R. R. Co. v. Swinney, 38 Iowa, 184, it was held that the husband could, without the concurrence and signature of the wife to the deed, convey a right of way to a railroad company over the homestead, provided the effect of the conveyance would not be such as to defeat the substantial enjoyment of the homestead as such. Upon the agreed case as presented, we are of the opinion that there is no error in the judgment of the court below, and that therefore it ought to be affirmed. Affirmed. Homestead Premises-Husband alone may grant Right of Way through them.-In Chicago & Southwestern R. R. Co. v. Swinney, 38 Iowa, 182, it was held, in accordance with the decision in the principal case, that a grant of a right of way through homestead premises made by the husband alone, without the wife joining, was valid, provided the occupancy of the right of way would not materially interfere with the occupancy of the homestead premises as such. The decision seems to go partly on the ground that the right of way is a mere easement. The court says: "If the homestead was a single lot, and the right of way occupied it all, so as to destroy the homestead or defeat its occupancy as such, the case would be very different." This case is disapproved in Smyth on Homestead and Exemptions, § 303. It is there said: "That he (the husband) could alone grant an estate in it (the homestead) even of the nature of an easement, which should be a permanent one and uncontrollable by the spouses, appears to be antagonistic to the general intentions of the framers of the constitutions and laws as to homestead; but the latest ruling upon the point, Chicago & Southwestern R. R. Co. v. Swinney, supra, favors the right of the husband so to do." Damages paid in Proceedings for Condemnation of Homestead Property. -Has the husband exclusive right of control of money paid as damages for the condemation of the whole or part of homestead premises? It was held that he had in the case of Canty v. Latternar, 15 Âm. & Eng. R. R. Cas. 380; that he had not in Kaiser et al. v. Seaton, 14 Am. & Eng. R. R. Cas. 405, and that consequently such money could not be garnished while in the hands of the sheriff by creditors of the husband. The court draw a distinction between alienation of exempted property by voluntary grant, and alienation by proceedings in invitum, and advert to the cases holding that where exempted property has been wrongfully sold on execution the proceeds of such sale cannot be garnished, and hold that condemnation proceedings, being also in invitum, the damages allowed are exempt. writer knows of no other authority on the subject. The GRAY v. THE ST. LOUIS AND SAN FRANCISCO R. R. Co. (81 Missouri, 126.) In action of ejectment by a landowner to recover possession of land condemned for a right of way for a railroad, the record of the condemnation proceedings is admissible in evidence. Where the owner of land appeared by agent before commissioners appointed in proceedings under the statute (Gen. St. 1865, p. 352, §§ 1, 2, 3) to condemn such land for a right of way for a railroad, and endeavored to increase the amount of their finding, and appeared in court by attorney and objected to the award because it was insufficient, but made no objection to the construction of the road, and took no legal steps to prevent its construction, he cannot maintain an action of ejectment against the railroad company to recover possession of the land. Proceedings to condemn land for a right of way for a railroad are purely statutory, and the powers possessed by the judge at chambers or by the court in appointing commissioners, reviewing and setting aside their report, and appointing new commissioners, are limited and prescribed by statute, and can only be exercised in the manner provided by the legislature. When commissioners have been appointed, have made their report, and their award has been paid to the clerk, for the owner of the land as provided by statute (Gen. Stat. 1865, p. 352, § 3), the company is vested with the interest in the land for the purposes appropriated, and mutual rights are created which cannot be divested, except by consent of both parties, unless the company, as provided by statute, shall elect to abandon the proposed appropriation of the land. Plaintiff's land having been condemned upon proceedings at the instance of one company, the money paid to the clerk, the land reduced to possession, the road constructed and put in operation, and sold to defendant company, such first company cannot afterward, by motion, dismiss the proceedings as to plaintiff, such action being an interference with vested rights. A railroad company incorporated and existing under the laws of an adjoining State is empowered by statute (R. S. 1879, § 790; Laws 1870, p. 90, §2) to obtain, in this State, a right of way by condemnation proceedings. APPEAL from Jasper Circuit Court. John O'Day for appellant. M. L. Gray, pro se. EWING, C.-This was an action in ejectment, commenced in August, 1880, to recover of defendant a part of the east half of the southwest quarter of section 3, township 27, range 33. The petition is in the ordinary form and the answer a general denial. Plaintiff read in evidence against defendant's objections a pat ent from the United States, and then evidence tending to show the damage sustained, and that defendant was in possession; and one |