DISSENTING OPINION.
GRAVES, J.-This case furnishes me an opportunity to place myself right in my own mind without changing the heretofore written law. When the case of Heman Construction Company v. Wabash Railroad Company, 206 Mo. 172, was before this court, I voted to sustain the lien of a special taxbill as against, a railroad right, of way. I have never been fully reconciled to that vote. Upon reflection thereafter, I became convinced that my brothers Pox and Lamm were right in their dissent, and so feel at this time.
In the Wabash case we used this language: “As to the proposition urged against this lien, that the i-oadbed or right of way of the defendant, or a part thereof, could not be sold under .execution to satisfy *657any judgment which may be rendered in favor of plaintiff: in this case, it is not necessary for us to express an opinion at this time. What we do hold is that, -under the charter and ordinance, the taxbill sued on in this case is a -lien ag’ainst that part of the right of way of the defendant company described in the tax-bill, We do not feel, called upon to determine how such judgment can be enforced, but it is probable that counsel will be able, if necessary, to accomplish such' result. ’ ’
If it be a fact that there is no way of enforcing a lien, it is persuasive to my mind that no lien could or should be decreed. Why say a lien does exist, and yet say that it cannot be enforced by process from a court. We have held that segments of a railroad’s right of way cannot be sold under special execution enforcing a lien.
In Knapp v. Railroad, 74 Mo. l. c. 378, we said: “It has been several times declared by this court to be against public policy to permit detached portions of a railroad to be sold under an ordinary execution, or under a judgment enforcing a mechanic’s lien. [Dunn v. N. Mo. R. R. Co., 24 Mo. 493; McPheeters v. Merimac Bridge Co., 28 Mo. 467; Schulenburg v. C. & N. Ry. Co., 67 Mo. 442.] In the case of the St. Louis Bridge & Construction Co. v. Memphis, C. & N. W. Ry. Co., 72 Mo. 664, the question now before us was not discussed, but it was taken for granted that the lien extended to the whole of the road lying within this State, and so stated- In Schulenburg v. M. C. & N. W. Ry. Co., supra, the act now under consideration was reverted to, but- not construed, as the lien sought to be enforced in that case was based upon the general law in relation to mechanic’s liens; but the views of this court previously expressed against the policy of permitting a railroad to be sold out in detached parcels, were distinctly reasserted.”
*658In Ireland v. Railroad, 79 Mo. l. c. 573, we announce the same doctrine thus: “It is intimated in the brief of appellants that the demurrer was sustained on account of the supposed impossibility of enforcing such liens against a railroad whose roadbed was not wholly within the State. This objection has been disposed’ of in the case of the St. Louis Bridge & Construction Co. v. M. C. & N. W. R. R. Co., 72 Mo. 664, in which it was held that a lien could be adjudged and enforced against such part of the roadbed as lay within the State. It has also been decided that no lien under this law can be adjudged or enforced against only a part of the roadbed lying within the State. The lien must be adjudged against the whole of the roadbed, or against none of it, within the State. [Knapp v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 374; Cranston v. Union Trust Co., 75 Mo. 29.] ”
Other cases are cited in the quotation first above given.
Liens of the character sought to be enforced in this case must be as against the property benefited by the improvement, and hence only against a small segment of the right of way. If public policy forbids a part or a segment of á right of way being sold as indicated by these cases, then there is no means by which our judgment can be enforced, because no personal liability attaches in such cases. My reflection upon these cases and the reasons given therein have shaken my confidence in the judgment given by this court in the Wabash case, supra, and I now desire to dissent from that doctrine and hence dissent in this case.
Lamm and Ferriss, JJconcur in these views.