dissenting. — Under‘the decisions in this court, *314a railroad' company may fence its track whenever it is “fit, proper and suitable ” to do so, and the right rests upon the public convenience, the public interest, and not upon the convenience of the railway company. This rule has been applied by this court to cases wherein was involved the right to fence depot grounds and a strip of land adjacent to a railroad track, “ designed to afford room for teaming and driving” on each side of the track. Davis v. Burlington & M. R. R’y Co., 26 Iowa, 549 ; Rogers v. Chicago & N. W. R’y Co., Id., 558.
This court has not held that a railroad company has not the light to fence its track within the limits of a town or city, when the public interest and convenience do not prohibit it. Gilman v. Sioux City & P. R’y Co., 62 Iowa, 299, and Coyle v. Chicago, M. & St. P. R’y Co., Id., 518, are claimed by counsel to so hold, but they are not to that effect.
The mere fact that a lot, containing nearly four acres, (the lot in question being that size,) is within a town or city, does not authorize the conclusion that the interest and convenience of the public does not demand that a railway running through it should not be fenced. Indeed, it may be that a fence, in such a case, is more urgently demanded by the public good than in case of farming lands away from towns and cities! It will be observed that the facts shown by the question submitted in this case disclose that the railroad runs “ over and across ” the town lots, not upon a street or road adjacent thereto. The foregoing opinion, while admitting that the rule it approves has not been held by this court, declares that it was in the “ mind ” of the court, and therefore recognized in Davis v. Burlington & M. R. R’y Co., 26 Iowa, 549. We cannot fathom the “mind” of the court in order to determine the rule of law decided, nor can we consider the arguments advanced in the discussion by the court in order to determine the point decided. We look to the facts, and, if we discover that the point was not in the *315case, whatever is said about it is not to be regarded as a decision; it is mere dictum. The foregoing opinion admits what is true, — that the question before us was not in the case cited; it is therefore no authority in this case.
A doubt may well be expressed as to whether the point in controversy in this case was “ in the mind ” of the court in the case cited, and whether any arguments found in it support the conclusion reached in the foregoing decision.
Reed, J., concurs in this dissent.