against the old, insolvent corporation affords | done, but it designates no plan other than the them any compensation. The maxim applies Qui sentit commodum, sentire debit et onus. In Louisville, N. A. & C. R. Co. v. Boney, 117 Ind. 501, 3 L. R. A. 435, the court says: Where a consolidation of railroad companies takes place, in pursuance of the statute, the corporation into which the original companies are merged becomes liable for all the valid debts and obligations of the consolidated company, and a judgment in per sonam may be rendered against it therefor." The same doctrine is declared in Cleveland, C. C. & St. L. R. Co. v. Prewitt (Ind.) 33 N. E. Rep. 367, and cases there cited. This is now settled law. The averments of the second paragraph of complaint, concerning what is styled a revocation of appellant's license and the demand for possession, are mere surplusage, in view of the chief line of averments to which we have referred.

writ for such assessment. In no analogous cases under this statute has the point ever been decided adverse to appellee, but the court has on several occasions expressed dicta in relation to the matter in ejectment suits and actions for trespass. In Louisville, N. A. & C. R. Co. v. Beck, 119 Ind. 124, which was a possessory action, the court says "that a landowner who stands by, without demanding compensation, until a railroad company has so far completed and put in operation its road as to involve the public interest, can neither enjoin the company, nor maintain ejectment to recover his land. The only remedy left to the landowner, in such a case, is to proceed, within the proper time, to have his damages assessed and enforced against the railroad company. This rule is founded upon the general principles of public policy, as well as upon the provisions of But the learned counsel for appellant urge section 3953, Rev. Stat. 1881.” In Pittsburgh, with much vigor another reason why this Ft. W. & C. R. Co. v. Swinney, 97 Ind. demurrer should have been sustained, viz., 599, the court says: "The accepted doctrine assuming that appellee has a cause of action, now is that where a railroad company, or he should have proceeded by the writ of ad other corporation possessing similar powers, quod damnum, as provided by statute, and takes possession and enters into the use of that, having misconceived his action, he must real estate without the consent of the owner, fail here; that it is a common-law remedy, and without taking the necessary means to and the statute provides an ample remedy, acquire the title it assumes to assert, the of which appellee could avail himself, to the owner may resort to any or all of the usual exclusion of the common-law remedy. Coun- remedies known to the law for the protection sel insist that he is probably restricted to the of his estate in the property." The doctrine one specified in the statutes, and that it is thus expressed, appeilant claims, leaves, by exclusive. The statutory remedy is provided implication, the converse of the rule, namely, for in section 3953, Rev. Stat. 1881, and is that where the owner does consent, and the in this language: "If, from any cause, there company takes possession under his license, shall be any failure of the right of way, or he cannot avail himself of all these remedies, when the title thereto has not been acquired, but must be limited in his remedies to one upon which any railroad of this state is now or more of them. In Cincinnati, H. & I. R. constructed, it shall be lawful for the com- Co. v. Clifford, 113 Ind. 467, also a possessory pany owning the road, or for the party own- suit, the court says: "The counsel for aping such lands upon which any part of the pellant are in error in assuming that the only road is constructed, to apply to the proper remedy to the landowner is that given by court for the writ for the assessment of dam statute. He is not confined to that remedy, ages, and have the damages which the owner but, in the proper case, may prosecute an of said property has sustained, or may sustain action for damages or possession. In Harshby reason of the taking, use, and occupancy barger v. Midland R. Co., 131 Ind. 177, which thereof by the company for the construction was an action to recover for lands appropriand maintenance of said road; and upon the ated by defendant company, and acquiesced assessment and payment of the company of in by the owner, the court says: "It is a the damages which may be assessed or right of action existing in the owner at the awarded, the title to such property shall vest time of the appropriation and the creation of absolutely in the company for the purposes the right of action separate and distinct from of the said railroads," etc. In this case the the land. The right of action occurred at the appellant insists upon the broad proposition time when the ancestor might have mainthat, when any work of a public character is tained an action for damages, or instituted authorized by an act of the legislature, and proceedings to have his damages assessed." a mode of obtaining compensation for private În Lane v. Miller, 22 Ind. 104, the court property to be taken for its construction is spe- says: "The objection made to the complaint cifically pointed out, such compensation must is that, as the law on the assessment of dambe sought in the way prescribed by the act, ages has given a person whose lands are inand not otherwise. On the other hand, ap- jured by the erection of a milldam a remedy pellee contends that the method thus pointed by writ of assessment of damages, he is conout by the statute is cumulative, and does not fined to that remedy, and cannot resort to his defeat or take away the common-law remedy. action at common law." In Snowden v. Wilas, It will be observed that the language of the 19 Ind. 10, 81 Am. Dec. 370, a query is raised statute is: "It shall be lawful for the com- whether he should not be confined to the statpany owning the road, or for the party own-utory remedy, but the point has never been ing such lands, upon which any part of the decided by this court. In Summey v. Mulroad is constructed, to apply to the proper ford, 5 Blackf. 202, the point, after full ex-court for the writ for assessment of damages, "amination, was ruled the other way. In It does not specify that it shall be so Toney v. Johnson, 26 Ind. 382, a milldam

etc.

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case, the court says: "It is insisted that the of statutory privileges, where they agree demurrer to the complaint should have been among themselves to adjust their own consustained, on the ground that the remedy troversies in a different manner. The law provided by statute excludes any other pro- fosters and encourages compromises and setceeding. Such has not been the view taken tlements of questions in dispute, in lieu of by this court. From the organization of this litigation, where conscionable terms can be Court, actions like the present have been sus- agreed upon. The machinery of statutory tained. The distinction between statutes law is at times cumbersome and unwieldy, which are exclusive, and those which simply and the administration of justice under it provide a cumulative remedy, is stated in quite expensive. If, to avoid costs of litiga Lang v. Scott, 1 Blackf. 405, 12 Am. Dec. tion, they waive its provisions, and agree on 257. If a statute is introductory of new a cheaper and more direct plan, looking to rights, which did not before exist in the equitable relief, courts should uphold and country, and prescribes a penalty for their enforce its provisions. In this case, as violation, the persons claiming under the act stated, appellant's predecessor applied to apmust depend for the security of the right thus pellee, before the road was constructed, to claimed upon the provisions therein specified. pay him for this right of way. Appellee When there is a pre-existing right at com- then informed the company that he could not mon law, and an affirmative statute inter- tell the extent of his damage until the road venes, inflicting a new penalty, the law is was constructed. Thereupon, it was agreed otherwise." In Indiana, B. & W. R. Co. v. that the company might construct its road Allen, 113 Ind. 583, the court uses this lan- across appellee's land, and when completed. guage: "Our conclusion is, that acquies- it would pay the damage occasioned. cence does defeat the action of ejectment, un- curs to us that by force of this license and less there are countervailing facts, or some agreement the parties dispensed with the element which nullifies the force of the ac writ of ad quod damnum, and agreed that the quiescence. We do not assert that it will damages should be ascertained by mutual defeat any action where only compensation stipulation. If the original company had reis sought. Compensation he may re- mained in possession, it could have been comcover, possession he cannot. To the recovery pelled to pay. Appellant got no better title of just compensation his rights are confined." under the foreclosure proceedings than its These various opinions expressed by judges predecessor had. Why should it not be comon points that did not necessarily arise in pelled to do justice to the wronged landmost of those cases, and were not directly in- owner? The original company had acquired volved in them, seem somewhat conflicting; the right to build its road upon the land in but, taking the language employed in sec- question without being guilty of trespass, or tion 3953, "it shall be lawful for the company remitted to the writ of ad quod damnum, and owning the road, or the party owning the the measure of damages, as suggested, was lands. to apply to the proper court afterwards to be ascertained by agreement. for the writ of assessment," etc., excludes the When appellant took possession of appellee's idea that the common-law right of action for land, it affirmed the agreement, and, in damages is abrogated, and supports the the-equity, made itself liable to pay the damory that the statute furnishes him this remedy Acquiescence on the part of the landin addition to the one with which he was owner, though acting as a waiver of his right vested under the common law. But, for the to maintain ejectment, is by no means a purposes of this case, we do not regard it waiver of his right to damages such as would necessary to decide this question. If appel- have been recovered in a regular condemnalant had preferred the writ of assessment, it tion proceeding." 19 Am. & Eng. Encyclop. also had a right to invoke the aid of the stat- Law, 860. Appellant is possessed of a license ute, from its very terms, and thereby avoid which, being irrevocable, renders it as sethe direct suit for damages, of which it com- cure in its possession as an easement, and “an plains. The license, according to its theory, easement once acquired becomes a privilege not having estopped appellee from asserting in favor of the dominant estate, and a burden a claim under the writ, appellant would not imposed upon the servient estate, and subsebe deprived of the benefits of the statutory quent grantees take it subject to the privilege remedy. To be denied by statute a remedy or burden." Ballard, Real Estate Statutes, possessed before its enactment, its terms should be express, or so clearly repugnant to the exercise of it as to imply a negative. Parties are not compelled to avail themselves 23 L. R. A.

ages.

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366. The appellant does not discuss the sufficiency of the evidence to sustain the finding, and the question is therefore waived. Judgment affirmed.

NORTH DAKOTA SUPREME COURT.

And the same was held in Woods v. Davis, 34 Iowa, 264, where the custody of the children was awarded to the wife, but the husband was still lia-ors even if she afterwards obtains a divorce, whereble for support of his children.

And under Indiana 2 Rev. Stat. 1876, providing And under Tex. Rev.Stat..art. 2864, providing that for exemption on" a debt growing out of or found-in a decree of divorce the court may divide the esed upon a contract, express or implied," there is no tate of the parties, but that nothing shall be conexemption to the husband on a judgment for all-strued, to compel either party to divest him or hermony in favor of the wife. Menzie v. Anderson, 65 Ind. 239.

Wife's claim to homestead, where decree of divorce time of divorce, and by the decree was awarded

When the respondent was divorced from her husband and given the custody of the children she became the head of the family. Thompson, Homesteads, & Exemptions, § 82.

A wife who has been granted a divorce and given custody of the child, is the head of the family, and as such is entitled to the homestead.

Sellon v. Reed, 5 Biss. 125, 21 Myer's Fed. Dec. 639; Byers v. Byers, 21 Iowa, 268; Vanzant v. Vanzant, 23 Ill. 536; Bonnell v. Smith, 53 Ill. 375: Brandon v. Brandon, 14 Kan. 342; Rendleman v. Rendleman, 118 Ill. 257.

Bartholomew, Ch. J., delivered the -opinion of the court:

What was the condition of this land as to the homestead character at the time of the rendition of the divorce decree? We think it was the homestead of Torkel Mehus and his family, including this respondent. The legal head of the family had remained in constant occupancy of the land as his home. This preserved its homestead character. The actual presence of the wife is not required for the inception or preservation of the homestead right, so long as the husband is the head of the family. Johnston v. Turner, 29 Ark. 280; Williams v. Swetland, 10 Iowa, 51; Bradford v. Central Kansas Loan & T. Co. 47 Kan. 587.

Without holding that a wife can forfeit her homestead interest in her husband's home, or estop herself from claiming the same by This action was brought to determine ad- anything short of a contract, but assuming verse claims to a quarter section of land in such to be the law, it is yet certain that this Steele county. It was heard on an agreed record shows no such forfeiture or estoppel. statement of facts, from which the court The record does not disclose when the adulmade two conclusions of law: First, that tery upon which respondent based her action plaintiff was not the owner in fee simple of for divorce occurred. If prior to her leaving the land; and, second, that defendant was home, her absence would not imperil her entitled to the possession of the land The rights (Earle v. Earle, 9 Tex. 630); but, if judgment simply dismissed the complaint on subsequent, yet it does not appear that she the merits, with costs. Plaintiff appeals, left her home and abandoned all intention to and assails the conclusions as not warranted return. It does not appear that she left the by the facts. On June 10, 1882, one Torkel jurisdiction, or attempted to establish a home Mehus, husband of the respondent, Thea Me- elsewhere. Her effort to file a declaration hus, obtained a patent to said land under the of homestead would indicate an intention to federal homestead law. Torkel Mehus and return. It has grown to be familiar law respondent continued to reside on said land that, in the absence of express statutory proas their homestead until May, 1887. At that visions, absence from the homestead for any time there were living three minor children, reasonable time will not amount to abandonthe issue of their marriage. In May, 1887, the ment when the animus revertendi always exrespondent, Thea Mehus, taking her minor ists, and no other home is created. We rechildren with her, left the said Torkel Me- peat, respondent's homestead right existed bus, and has not lived with him since that at the date of the rendition of the decree of time. Torkel Mehus continued in possession divorce, but it so existed by virtue of the of the land, and made his home thereon un- fact that she was a member of the family of til the sale thereof hereinafter mentioned. Torkel Mehus, who, with his family, had In January. 1890, the respondent, as the wife established his home and their home thereon, of Torkel Mehus, and in behalf of herself and whose occupancy had been continuous. and her minor children, attempted to file a Her rights were in no manner strengthened declaration of homestead under sections 2458 by the fact that she attempted to place a decand 2459, Comp. Laws, and the declaration laration of homestead on record. Such decwas recorded in the office of the register of laration does not create homestead rights deeds of Steele county. In October, 1890, she (Cole v. Gill, 14 Iowa, 527; Yost v. Derault, brought an action of divorce against Torkel 9 Iowa, 60); nor do we think, although we Melius, on the ground of his adultery; and do not find the point ruled, that it takes the in January, 1891, the district court granted place of continuous occupancy after the inher a decree absolute on that ground, and ception of the homestead, except where, as gave her the custody of the three children. in Minnesota, there is an express statutory In her complaint she prayed the allowance provision to that effect. But even then, we of a reasonable sum for maintenance of her- suppose, the statute in no manner affects the self and children out of the property of her question of actual abandonment, but might, said husband. The decree gave her a gross in a subsequent contest, shift the burden of sum of $250, and $20 per month for the sup- proof. In this state, when the head of a port of herself and children. No order what- family owns land in excess of the amount alever was made relative to the homestead, nor lowed by law for a homestead, and the land was it mentioned in the complaint. On the is in one body, and the family resides there9th day of September, 1891, Torkel Mehus on, the homestead may be selected in any form executed a warranty deed of said premises to that may be desired up to the quantity althe appellant, Rosholt. Appellant was a lowed by law as a homestead. Recording a purchaser for value, with no notice of any declaration of homestead gives notice to all claim of respondent upon the land, except the purchasers, and all parties dealing with or exconstructive notice given by the record of the tending credit to the owner, of the exact land homestead declaration and the record in the claimed as a homestead. This, we think, is divorce proceedings. Appeilant claims un- the main, and perhaps exclusive, reason for der the deed, and respondent claims a home-the provision because a failure to make and stead interest in the land. file the declaration does not render the home