(concurring specially). I concur in the result announced in the foregoing opinion, but I am unable to agree with the views expressed in regard to what might have been the result had the property sought to be assessed been limited to the right of way of -the defendant. I consider the assessments specified in the second and third causes of action to be void for indefiniteness of description, and that they would have been no less void had the words “and railway lands” been omitted. Section ii, c. 213, Raws of 1903, requires that the estimate for special assessment shall among other things contain: “4. The full description together with the owners’ name, of each lot, part of lot and pai'cel of land, and the number of feet of frontage of the same after deductions made, bordering upon the street or streets in which such sewer or sewers are to be constructed.” This estimate is published in the official newspaper, and constitutes the basis for the assessment and all subsequent proceedings. The description in the engineer’s estimate in the third cause of action (which differs from that in the second cause of action only as to the side of the street), after showing that the property is situated in Red-field, is as follows:
*422
It seems to me that this description would be precisely as indefinite if the words ‘‘and railway lands” were’ omitted. The only definite things about it are that the land lies within the city limits of Redfield, that it is on the west side of Emerson street, and that it has a frontage of 570 feet. H'ow could a -surveyor from these facte alone definitely locate the property? It seems to- me that the description- with the words “and railway lands” omitted is no more definite than if it reads “lands of John Smith, west side of Emerson street,” or “right of way of John Smith, west side of Emerson street.” I cannot subscribe to the proposition that a description which might be good as between the parties in a deed or contract is necessarily gxiod in proceedings by which land may be taken from its owner by legal machinery.
Again, even if the right of way wefe capable of being located from the assessment, the description is indefinite, because it contains no western boundary. To sustain this the opinion states that' the statute is a legal monument, specifying the extent of the special assessment districts. The statute (section '24, c. 213, Raws of 1903) is as follows: “The term ‘lot’ as used in this act shall be deemed to be any tract of land described as a lot in the recorded plat of the city or any addition or subdivision thereof. Any block of land not subdivided into lots or in ownership shall be assessed for sewerage purposes to the center line thereof from the front itpon which the assessment -is calculated. Unplatted lands shall be assessed to a depth of one.hundred and fifty feet, from the street line upon which the assessment is calculated. Provided, that if the owner of the frontage own less than one hundred and fifty feet in depth, the assessment shall cover no more than the land belonging to the -owner of such frontage.”
*423It will be observed that, in °case of a platted lot bordering upon the street, the whole lot is to be assessed, be it more or less than 150 feet in ‘extent from the street line. In the case of a platted block owned.by one person, the assessment is h> extend •to the center of the block, be it more or less than 150 feet from the street line. In case a platted block is owned by different persons, the tract abutting on the street is to be assessed, be it more or less than 150 feet in extent from the street line, or be it more or less in extent than to the center of the block. In the case of unplatted lands, the tract assessed would extend -150 feet from the street line if the abutting owner owned so far. If he did not, it would only extend to the boundary of his ownership. The extent of the property to be assessed depends, therefore, not only on the facts in regard to the platting of the property adjacent to the street, but also upon extrinsic facts in regard to' ownership not shown in any map or plat and which may or may not be shown by the records in the register of deeds’ office. • I cannot accede to the implied inference in the opinion that a railroad right of way in a municipality is presumptively unplatted land.
In support of my View that the assessment would have been void if the words “and railway lands” had been omitted, I cite the following authorities: Hamilton on Special Assessments, § 539; Elliott on Roads and Streets (3d Ed.) § 743; 28 Cyc. 1164; Labs v. Cooper, 107 Cal. 656, 40 Pac. 1042; Upton v. People, 176 Ill. 632, 52 N. E. 358; C., C., C. & St. L. Ry. Co. v. O’Brien, 24 Ind. App. 547, 57 N. E. 47; Paine v. Germantown Trust Co., 136 Fed. 527, 69 C. C. A. 303; Pennsylvania Co. v. Cole (C. C.) 132 Fed. 668; L. & N. Ry. Co. v. East St R., 134 Ill. 656, 25 N. E. 962; Becker v. Railway Co., 17 Ind. App. 324, 46 N. E. 685. It is my opinion that section 24 of the Sewerage Act was not intended by the legislature to' be referred to in determining what property actually was assessed, but that 'said section was intended by the Regislature to be a mandatory direction to the assessing officers as to what property they should assess after making the proper investigation as to whether the land was platted or unplatted, and as to ownérship.
In the case of Poindexter v. Doolittle, 54 Iowa, 52, 6 N. W. 136, a tax deed recited that the purchaser at tax sale paid the taxes on a certain 40-acre tract for 14 acres, and 14 acres of said *42440-acre tract were deeded to him. The description was- held void for uncertainty. The statute provided that in such case the purchaser should be deemed to be the owner of the undivided 14-40 of the tract, but the court refused to call such statute to its aid in interpreting- the deed and refused to read the statute into the deed. It said: “The description in the deed designed to constitute the foundation of a title for all time, should be sufficient by its own terms.” See, also, Griffith v. Utley, 76 Iowa, 292, 41 N. W. 21, and Smith v. Blackiston, 82 Iowa, 240, 47 N. W. 1075. The Indiana case mentioned in the opinion is, according to my view, inapplicable. There the engineer in his report was only required to describe the property bordering upon the street. The secondary liability of the interior property for payment of part of the assessment rested upon the fact that a definite boundary 150 feet from the street line had been fixed by previous steps taken of which the interior owner was presumed to have notice by the publication required by the statute.
The description in the estimate for special assessment being void for indefiniteness, the later steps taken in the proceeding were ineffectual to constitute a valid assessment.