(concurring). — In construing the statutory provisions involved in this case, and in determining the force to be given to language used by this court in disposing of cases in which similar statutes of this state have been construed, it is important to notice in chronological order all the provisions found in the statutes relating to nonuser, abandonment, and reversion of rights of way acquired by railroads:
Chapter 4G of the Code of 1851 relates to condemnation of right of way, by any corporation or person designing “to construct a canal or a railroad, or a turnpike, .graded, macademized or plank road, or a bridge, as a work of public utility, although for private profit,” and contains this provision: “Sec. 776. If the contemplated work be not commenced within one year after obtaining land under these provisions, or if, after being commenced, it cease for two years to be prosecuted, or if, after being completed, it ceases for two years to be used for its- original purpose, the former owner may file his petition in the district court to have the land restored to him upon his refunding the purchase money without interest.”
In the Bevision of. 1860 this chapter is retained as chapter 55, the section above quoted being section 1295; and no further provisions on the subject of non-user are found in that compilation.
In 1870 a statute.was enacted (Acts Thirteenth General Assembly, chapter 91) relating to “right of way over abandoned railroad lines,” which need not be set out at length, but may be sufficiently stated in substance as providing (section 1) that, in case a railroad constructed in whole or *144in part under the laws of the state “has ceased to be operated ■or used for more than ten years, or in any case where the construction of a railroad has been commenced by any corporation or person within the state and work on the same has ceased for more than ten years and such railroad remains unfinished through the negligence of the corporation -or person who undertook to construct the same, it shall be ■deemed and taken that the corporation or person thus in default has abandoned and surrendered all right and privilege to control over so much of the line of their road as remains ■unused or unfinished as aforesaid;” and in such case (section 2) “it shall be lawful for any other corporation or person 'to enter upon such abandoned work, or any part thereof, and to acquire the right of way over the same and the right ..to any unfinished work or grading found thereon and the -title thereto by proceeding in the manner provided by law [in chapter 55 of the Eevision of 1860], provided that par-lies who have previously received compensation in any form for the right of way on the line of such abandoned roadbed, the consideration of which has not been refunded to [by (?) ] them, shall not be permitted to recover the second ■time, but the value of such roadbed and right of way, ex•cluding the work done thereon, when taken for a new company, shall be assessed to the former company or its legal representative.” It is evident that the proviso of this act .-as to parties who have received compensation which has not been refunded by them relates to landowners who have mot proceeded under Eevision of 1860, section 1295 (Code, 1851, section YY6), to have the land restored to them “on refunding the purchase money,” and, further, that the act ■of 18Y0 relates to a wholly distinct matter, not comtemplated by the section of the Eevision.
In the Code of 18Y3 the provisions of the act of 18Y0 were retained substantially unchanged as sections 1260 and 1261; but section 1295 of the Eevision of i860 was omitted *145entirely, and the significance of the phrase “on refunding the purchase money” was thus totally lost sight of. ;
In 1874 (Acts Fifteenth General Assembly, chapter 65) section 1260 of the Code of 1873 was amended, without other substantial change, by substituting five years for ten; and in 1880 (Acts Eighteenth General Assembly, chapter 15) the same section, as amended, was repealed, and a substitute enacted, which was incorporated into Miller’s Code of 1886 as section 1260, and into McClain’s Code of 1888 as section 1928. Without settng out this substitute in full, it is enough to say that it consists of two distinct parts, — the first an amplification of section 1260 of the Code of 1873 (Acts Thirteenth General Assembly, chapter 91, section 1), as modified by Acts Eighteenth General Assembly, chapter 15, substituting five years for ten, which related to the appropriation by another corporation of an abandoned right of way; and the second a wholly new enactment, added by way of proviso-, relating to the reversion of the right of way (and roadbed, if any), after a nonuser of eight year’s, to the owner of the land from which the right of way had originally been taken.
During these successive modifications of section 1260 of the Code of 1873, section 1261 of that Code (Acts Thirteenth General Assembly, chapter 91, section 2), which contained the provision as to parties who had previously received compensation in any form for the right of way which had not been refunded by them, remained unchanged and was retained in its identical language as séction 1261 of Miller’s Code and section 1929 of McClain’s Code. It is plain, therefore, that until the adoption of the present Code (1897), which is the first official 'codification of the laws of the state since 1873, the provision as to parties who had previously received compensation which they had not refunded related to appropriation by one corporation of a right of way abandoned by another corporation, and *146not to the reversion of a right of way to- the landowner after non-user for eight years. It is also plain that the same construction is to be given in this respect to sections 2015 and 2016; for there is no' such change of language as to indicate an intention to change the construction. The distinction between abandonment for five years and reversion after eight years is clearly preserved in section 2015, and it is onlyinthatpartofthesectionwhich describes an abandonment of the right of way that reference is made to section 2016, in which there is a provision for appropriation by another corporation of such abandoned right of way on making compensation for the benefit of the former company. It may be difficult to determine what construction should now be given to the clause of section 2016 which contemplates refunding by the landowner of the purchase money received by him for right of way. As already pointed out, this clause was apparently retained in section 1261 of Code of 1873 and McClain’s Code,' section 1929, by oversight and without any definite meaning. This suggestion may explain the divergent views expressed in the majority and minority views in this case with reference to what was decided in Dubuque & Dak. Ry. Co. v. Diehl, 64 Iowa, 635, and Chicago, M. & St. P. Ry. Co. v. Bean, 69 Iowa, 257, both decided between the enactment of Acts Eighteenth General Assembly, chapter 15, and the adoption of the present Code. Noll v. Railroad Co., 32 Iowa, 66, was decided before the enactment of that statute which introduced the provision' as to reversion after eight years. In the Diehl Case the landowner, who intervened in a proceeding in which one corporation- sought to establish its right to money paid into the hands of the sheriff by another, which had attempted to condemn a right of way as abandoned, and who claimed to be the owner of the right of way by reversion, was rather-summarily turned out of court because he had not repaid the compensation originally received by him for the right o£way. The judge writing the opinion does not explain to *147whom he should have repaid the compensation received, nor how he should have proceeded if a proffered repayment had been refused; nor is any reference made to the fact that the provision of the Revision of 1860 which pointed out just how he should proceed, and which was in force when the clause relating to repayment was first incorporated into' the law by Acts Thirteenth General Assembly, chapter 91, had been subsequently repealed by failure to incorporate it into the Oode of 1873. The whole matter is dismissed with the suggestion that it has not been pressed in argument. In the Bean Case the provisions as to reverter and return of compensation paid are run together, as though portions of one statute, which they were not until incorporated into the present Code. Prior to the present Oode, they were not only in separate sections, as they still are, but in separate statutes, separated by many years in point of time of enactment.
It may be that, in view of the incorporation of this clause into the present Code, some meaning must be found for it, and some construction given to it in connection with the provision as to appropriation by one corporation of a right of way abandoned by another by non-user for five years; but it is plain, not only by reference to the diverse origin of the two provisions, but also by the very language of the two sections of the Code in relation to the subject, that the clause has no reference whatever to reversion. I would therefore favor a holding that after eight years’ nonuser such as described in the latter part of Oode, section 2015, the right of way, including the abandoned roadbed, reverts absolutely and unconditionally to the owner of the land from which it was originally taken, and can be again condemned for right of way only as his property, and without regard to repayment by him of any compensation which he may have received therefor on the previous condemnationfor railroad right of way; and I think that previous cases, so far as they seem to reach a different result on the question, should be overruled. I therefore agree with the majority *148that the decision óf the lower court in this case should, be AFFIRMED.