(dissenting).— -The rule that the owner of the .fee is liable for a special assessment levied against an abutting railway right of -way across his land is so inequitable that I cannot conceive such result to have been intended by the general assembly.- It puts the burden of paying for the improvement on one who has no. beneficial interest in the real ■estate, leaving the present possessor, whose right in the property is practically perpetual, exempt from- any liability therefor. Section 1344, Code 1897, which is but a roenactment of a previous statute, provides: “No real estate used by railway corporations for roadbeds shall be included in the assessment to individuals of the adjacent property,, but all such real estate shall be the property of the companies, for the purpose of taxation.” While this section is found in the chapter relating to ordinary taxes, it announces, as a general principle, that railways are the owners of the land in their rights of way for purposes of taxation. Although the general power to levy taxes does not ■confer the right to impose special assessments for local improvements, yet a general definition of who shall be *316deemed -the owner of a certain - kind of property for the purposes of taxation 'applies to all kinds of taxes. We must look further to find the authority to levy this assessment. We start, then, with the principle established, that the right of way is to be treated as land, and the railway company is deemed its owner; and we next find that the city had authority, as stated by the majority, to levy the cost of this improvement on “the lots and lands fronting on the highway.” This power was made effective by the ordinance set out in the foregoing opinion. In the case of City of Muscatine v. Chicago, R. I. & P. Ry Co., 79 Iowa, 645 — being the first appeal of that case — the facts as stated show that the railway company had a right of way only over a portion of the property sought to be assessed. The company resisted payment of the tax in part on the ground set up in the case at bar, viz.: that it was not the owner of the land. On this issue this court said: “If any one held title to the land upon which defendant acquired the easement, it was valueless, for defendant had the right of the perpetual possession and enjoyment of the land. It would be absurd to say that the owner of such title is subject to taxation of any character upon the land, and that the owner of the perpetual possession is not. The spirit of our laws will not permit stxch a thing. The defendant, the perpetual possessor of the land, is the owner, who must respond to all demands -made in the exercise of the authority of taxation. * * * As the defendant in this caso was in the occupancy of the land with right of perpetual possession, it is to be regarded as the owner, and liable for the taxes thereof.” This holding does not seem to have been specially rested upon the statute we have set out, but is announced as a general principle of law, and in support of it the court cites Railroad Co. v. Spearman, 12 Iowa, 112; Cummins v. Railroad Co., 63 Iowa, 398; Hollingsworth v. Railroad Co., 63 Iowa, 443. On the second appeal no attempt'was, or properly could have been, made to question -this doctrine.. *317It was the Same case in every respect, a second time before the court, and, right or wrong, the first opinion announced the law which governed it. Drake v. Railway Co., 70 Iowa, 59; and cases cited. But I cannot think the rule a wrong •one, and I do not understand the majority to overrule the first case. I may say further that I am unable to comprehend the distinction made on this second appeal between that partuf the right of way of which it is said the railway Avas the oAvner (that is, to which ic had obtained deeds) and that part in Avhich it is spoken of as having only an easement, (that is, which it had condemned). A deed to a railway company of land for a right of way ordinarily copveys only an easement. Brown v. Young, 69 Iowa, 625; Elliott Railroads, section 972. What the railway company in that case held by condemnation, and what it obtained by deed for its right of way, should have been treated alike. All should have been exempt, or all liable. But the opinion holds the company liable on the deeded lands, and exempts it on those condemned. Outside our own state there is ample authority for holding that a railroad right of way is assessable for improvements of this kind. Chicago & N. W. R. Co. v. Village of Elmhurst, 165 Ill. Sup. 148 (46 N. E. Rep. 437) ; Elliott Railroads, section 786; Illinois Cent. R. Co. v. City of Decatur, 126 Ill. 92 (18 N. E. Rep. 315, 1 L. R. A. 613) (this case was affirmed on appeal to the supreme court of the United States, 147 U. S., 190, 13 Sup. Rep. 293, 37 L. Ed. 132) ; Chicago & A. R. Co. v. City of Joilet, 153 Ill., 649 (39 N. E. Rep. 1077) ; Railway Co. v. Connolly, 10 Ohio St. 164; New York, L. E. & W. R. Co. v. Marion County Com'rs, 48 Ohio Sup. 249 (27 N. E. Rep. 548) ; Railway Co. v. Hanna, 68 Ind., 562; Paterson & H. R. Co. v. City of Passaic, 54 N. J. Law, 340 (23 Atl. Rep. 945); New Haven v. Fair Haven & W. R. Co., 38 Conn. 422; Atchison, T. & S. F. R. Co. v. Peterson, 58 Kan. Sup. 818 (51 Pac. Rep. 290); Appeal of North Branch Ry. Co., 32 Cal. 499; City of Ludlow v. Trustees *318of Cincinnati S. R. Co., 78 Ky. 357; London & N. W. Ry. Co. v. Vestry of Parish of St. Pancras, 17 Law T. (N. S.) 654. These cases perhaps sufficiently answer the argument of the majority that a right of way is not land, within the meaning of the statxxté, and that the railway company derived xio benefit from the improvement. In the case against Connolly, supra, it is said: “The coxxxpany, to advance its own interests, has seen fit to appropriate to its own use grouxxds within the corporate limits of the city of Toledo, and over which the city had the power of making assessments to defray the expense of local improvemexxts; and why should not the compaxxy be held to have taken it cum onere'i A citizen would hardly claim exemption becaxxse he had devoted his lot to uses which the improvements could not ixx any way advance, and we see no good reasoxi why a railroad company should be permitted to do so.” To escape the result of this reasoning, the majority holds that the fee owner, who has beexi deprived of possession, control, and all beneficial interest, is liable to defray the expeixse of the improvement ; axid it xnay well be asked, how is he, or hoxv cau he be, benefited ? Eurtherxnorc, I may say the question of benefits was in issue in the trial court, and the fact was found against plaintiff. There is no grouxid shown for our interference with that finding. So, too, I may add that the authorities gexxerally hold that the land upoxx which a railway depot is located is benefited by the improvc7xxent of an adjacent street. See, for instance, Elliott Railroads, section 785; City of Muscatine v. Chicago, R. I. & P. Ry. Co., 88 Iowa, 291. Now, a depot is only usefxxl becaxxse of the right of way.' Any benefit to defendants’ depot property necessarily would affect the value of the right of way. There are many cases to be found holding that the right of way of a railway company is not subject to assessments for'Street improvements. But • in determining1 this coxiflict we- must- take into consideratioxx the' statutory provision quoted (section 1344, Code). Aside .from this statute, ‘however, the rule stated 1ms sxxpporl. in the *319cited cases and we should he influenced by tho demands-of manifest justice, rather than by a count of cases. That the right to impose such a tax is just seems to me apparent without argument. The burden borne by other citizens should, under similar circumstances, be shared by the railway companies. I do not accord any weight to the matter of what may be called legislative construction, as embodied in section 968, Code 1897, which authorizes cities under special charters to assess rights of way of railways for street improvements. This but expresses in terms the law that before existed by implication, for the city of Muscatine was under a special charter when the cause of action arose which was involved in the two appeals to which reference has been made. How the lien given the city in this case is to be enforced, I need not inquire. If the right of way cannot be sold, payment may be secured out of other property of the debtors. Railway Co. v Boney, 117 Ind. 501 (20 N. E. Rep. 432); Railway Co. v. State, 122 Ind. 443 (24 N. E. Rep. 350).
II. With reference to the personal judgment against plaintiff the majority holds the trial court was without authority to render it, and the case of German State Bank v. Northwestern Water & Light Co., 104 Iowa, 717, together-with two other cases from this court, are relied upon to sustain the position. The German State Bank Case was quite different in its facts from the one at bar. There one person promised another, to whom he had sold stock in a corporation, to protect the stock in the purchaser’s hands against debts owed by the -corporation to third parties. In the case of Davis v. Waterworks Co., 54 Iowa, 59, also cited, the third person, Avhile benefited by the promise, had no direct interest in it. This is an.important distinction.. See 7 Am. & Eng. Ene. Lar?, 107. In the third case— Messenger v. Votaw — there was a sale of real estate subject to a mortgage upon which the grantee agreed to pay'interest,, he having received money therefor. The right of the creditor to sue on the agreement, while spoken of, was not- in the *320■ease. It could not have been meant to hold that a purchaser of mortgaged premises, who agrees with the mortgagor to pay the mortgage debt, is not liable to the mortgage creditor on the promise. The converse of the proposition is elementary, and sustained by so many decisions of this court that I refer to the digest for a citation of cases. In the case at bar the agreement was a part of the contract of lease, and the payment of taxes and assessments was in the nature of rent. I think the case comes clearly within the doctrine announced in the following cases heretofore decided by this court: Johnson v. Collins, 14 Iowa, 63; Johnson v. Knapp, 36 Iowa, 616; Rice v. Savery, 22 Iowa, 470; Gooden v. Rayl, 85 Iowa, 592. The facts involved make this case much akin to those referred to, in which the purchaser of mortgaged real estate assumes and agrees to pay off the incumbrance. The lessor in the present caso would have had no right of action under this promise as against plaintiff without first paying the assessment, and then his right would have been only to sue for money paid to plaintiff’s use. Cassady v. Hammer, 62 Iowa, 359. This being true, the municipality levying the tax or assessment had the sole direct interest in the performance of the promise. I do not wish to be understood as saying that in every case of a promise made for the benefit of a third person the latter will have a right of action thereon. But. where a fund is given the promisor, and in consideration thereof he promises to pay out of it some obligation, present or future, ■of the promisee to a third person, such third person may sue thereon as being directly interested therein. Out of the •multiplicity of conflicting cases on this subject I shall content myself with citing but one other in support of the proposition last stated: Washburn v. Investment Co. 26 Or. 436 (38 Pac. Rep. 620). The conclusion I reach is that the judgment of the trial court should be affirmed.
Ladd, J., concurs in this dissent. Granger, O. J., not sitting.