On Rehearing.
Rothrock, J.I. This cause has again been presented to us upon a petition for rehearing, and has also been orally argued by counsel for both parties.
*226It i s claimed that, while as a matter of law the lands were subject to taxation for the years 1SC1 and 1862, yet they were not subject to taxation under the grant under which the railroad company was then claiming title to them, and it was, therefore, neither the right nor duty of the rajlroad company to pay taxes which were not and never could, as against it, have become valid. But in the cases of the Homestead Company v. Webster County, 21 Iowa, 221, and Dubuque & Pacific R. R. Co. v. Webster Co., Id., 235, this court held that it was the duty of the R. R. Co. to pay these taxes. It cannot, therefore, be said that the taxes in question were paid voluntarily or officiously. It is abundantly evident all through the record in these tax cases that the railroad company and its assignees, at all times, down to the final adjudication against them in the supreme court of the United States, acted in the belief that the lands passed to them under the railroad grant. The fact that during the years 1861, 1862 and 1863 there were conflicting claims to the lands, and for a part of that time the lands were withheld from certification by reason thereof, and were not taxable, cannot, after the repeated decisions of this court that the lands were taxable for those years, control the rights of the parties to this litigation.
II. It is insisted that the statement in the foregoing opinion, that the taxes for which recovery is sought in the case at bar are no part of the taxes which were sought to be recovered in the case of Homestead Co. v. The Valley R. R. Co., 17 Wall., 153, is erroneous.
Whether this be correct or not we think can make no difference upon the question of former adjudication, because, in our opinion, tho Dubuque & Sioux City R. R. Co., the plaintiffs asssignor, was in no sense a party to that action, so far as the question of taxes is involved. We are content with what is said in the foregoing opinion upon that subject.
III. Lastly, it is again urged that the claim for taxes was barred by the statute of limitations when the action was commenced. In the foregoing opinion it is held that the right *227of action did not accrue until the termination of the litigation bj which the title was adjudged to be in the defendant. It is claimed that this rule is erroneous, and that rights of action accrued upon the payments at the time they were made. "We are not disposed to adopt the rule contended for. The case is a peculiar one. The controversy between the railroad grant and the river grant continued for many years. The lands were held by federal authority to belong, first to one grant, and then to the other, and then again to the other, and the title was not finally and conclusively settled until the decision in the case of Homestead Co. v. Valley R. R. Co., 17 Wallace, 153. If the plaintiff or his assignor had commenced an action before that time to recover these taxes, it would have been a virtual abandonment of all claim of title to the land. The conflicting decisions as to the title warrant the belief that those parties claiming under the railroad grant asserted title to the land in good faith to the last. Hinder these circumstances, we feel warranted in adhering to the rule that the statute did not commence to run until the final adjudication in December, 1872.
It is claimed, however, that the question of title was finally decided in December, 1866, in the cases of Wolcott v. Des Moines Co., and Des Moines Co. v. Burr, 5 Wallace, 681 and 689. We think it is sufficient in regard to this feature of the case to repeat what was said of the Wolcott case in Goodnow v. Moulton, 51 Iowa, 555: “This action (the Wolcott case) was between parties, both of whom claimed under the river grant, and it was held that the title to such lands had passed thereunder. But, as no one claiming under the railroad grant was a party to the action, it cannot be said that the decision was of any bearing as to them.”
It is true that counsel of the Dubuque & S. C. R. R. Co. were allowed to appear and be heard in argument in the 5. dossier appearance ‘ ol counsel in argument. Wolcott and Burr cases in the Supreme Court of the Tinted States; but the railroad company was not a party to the record. It is no unusual thing for counsel interested in a like question to be permitted *228to appear in tbe argument of a case; but that any right of bis client is adjudicated in tbe case because of such appearance, cannot be admitted. Tbe former opinion is adhered to and tbe judgment is reversed.