
    Gregg against Irish and wife.
    
      September.
    
    *?y defd granted to the proprietors of1 a p£ej“eb°fJan?.’ ed only for fhe beneBt o?r present and succeeding inhabitants, to be by the proprietors of lots in said town, applied or imperlons'of their deietees,3 or other-said inhabitime to time order and for no whatsoever!” ® was held, that a lease for ten years, made by the burgess and council, (the town liaving.been incorporated after the grant,) with the approbation and consent or a majority of the inhabitants, to an individual who was to erect a warehouse on the premises, and at the expiration of the term deliver it to the lessors in good order, was within the scope of the powers granted by the deed.
    In Error.
    ON the return of a writ of error to the Common Pleas . . of Fayette county, it appeared, that this was an action on the case for a nuisance, brought by William B. Irish and the plaintiffs below, against Israel Gregg, the defendant, to try the validity of a lease of certain ground in the town of Bridgport, made by the burgess and council of the said town, to the defendant. The facts on which the case turned, ^ tnese.
    
      Rees Cadztiftlader, the original proprietor of the town of , , , , . . r . Bridgport, made, by deed, an appropriation of a certain peice of ground in the said town, of which the demised premises were a part, “ to be applied only for public uses, for the benefit of the present and succeeding inhabitants of the said town forever, to be by the proprietors of lots in the said town applied or improved in the persons of their delegates or trustees, or otherwise, as a majority of the said inhabitants may from time to time order and direct, and for no other use, intent, or purpose, whatsoever.” The town having been mcorporated by act of assembly, subsequent to the making of the deed of appropriation before mentioned, the burgess and f , . . ’ _ ° . council, with the consent and approbation or a majority or the lot holders and inhabitants, made a lease of part of the appropriated ground to the defendant, for the term of ten years, in consideration of which, he agreed to build a frame warehouse of certain dimensions, to be underpinned with stone, which at the expiration of the term, was to be delivered in good order to the said burgess and council.
    The plaintiffs, who were seised in right of the wife, of certain lots in the town of Bridgport, under the will of her father, Rees Cadxvalader, and whose consent to the lease had not been obtained, brought this suit against the defendant for occupying the public ground. The Court of Common Pleas were of opinion, that the burgess and council had no authority, even with the consent of a majority of the lot holders, either to sell or let any part of the premises thus granted for public uses, to an individual for his private and separate use, and that therefore the lease to the defendant was void.
    This opinion was excepted to by the counsel for the defendant, at whose request it was filed of record.
    Lyon, for the plaintiff in error,
    contended, that the lease in question was within the scope of the power given to the inhabitants of Bridgport, by the deed of appropriation. It was granted for the benefit of the inhabitants, and they were the best judges of what would be most conducive to their benefit. The naked, unimproved land, was of no value to them, and that the erection of a warehouse was the most elligible mode of improvement, was testified by the approba-i tion of a majority of the lot holders. A rent, was undoubtedly for their benefit, and building a warehouse which they were to receive at the expiration of the term, was in the nature of a rent.
    Baldwin, for the defendants in error,
    denied that an unlimited power of disposing of this property was given to the inhabitants. It was to be held only for public purposes. A lease, during its existence, takes away all use of the ground from the inhabitants, as effectually as a sale ; and if a lease for ten years be valid, one for a hundred years would be equally so.
   Tilghman C. J.,

after stating the facts, delivered the opinion of the Court.

The plaintiffs contend, that this ground, being appropriated for the public use, could not be leased to any one person;—that if alease may be made for ten years, it may be made for an hundred, and thus the inhabitants deprived of the benefit of it.—<If it had been the object of Rees Cadwalader, that the ground should be kept open for the purpose of a public walk for the inhabitants, the lease in question would have been a misappropriation. But such was not the intent. The ground was to be improved in such manner as the inhabitants should think fit. It is a water lot, the best improvement of which would be, the making of wharves, and the erection of warehouses, which might yield profit to the inhabitants, besides affording them a landing for their common benefit. These improvements could not be made without money, and it became a question, whether it was best to raise the money by tax on the inhabitants, or by making a lease of part of this common property for a limited time.— The inhabitants thought that a lease was preferable to a tax, and I cannot see any thing contrary to the intent of the donor, in a lease, provided the length of time was not unreable.—The land could not be sold, nor could it be leased for such a time, as in fact -would almost amount to a sale of the fee simple; a term of one hundred years for instance, or even for a much less time. The reasonableness of the time would be a question for the decision of the Court and jury. In the present instance, the necessary consent of a majority of the inhabitants was obtained, and the mode which they have thought proper to adopt, of raising a fund for the erection of a building, which will be a manifest improvement of the common property, will not deprive the inhabitants of the use of that part which is leased, except for a short time, after which it will be restored, increased in value. In fact they cannot be said to be deprived of the use of it at all, for the agreement of the defendant to erect this building, is in nature of a rent, to be received by the inhabitants at the expiration of the term. In what manner can they enjoy the benefit of ground of this kind, better, than by building a warehouse, which will produce a rent, that may be applied to purposes of common advantage, or which may be kept in their own hands for their common use? It appears to me that this lease was not a violation of the appropriation made by Rees Cadwalader, and therefore the judgment of the Court of Common Pleas should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  