
    Lessee of the City of Cincinnati v. The First Presbyterian Church.
    Statute of limitations runs against a town or city corporation.
    This cause was adjourned from the county of Hamilton, and came before the court, upon a motion, by the defendants, for a new trial. The facts material to the point decided are these. The proprietors of the city of Cincinnati, at the time .of originally laying out the grounds for a town, set apart the ground in controversy for a public use, designating the lots, on the map, with red ink, and indorsing a note in these words: “ The town lots given for public uses are numbered and painted with red ink." The first settlers planted their first church on a part of these grounds, and continued to occupy them from that period, 1790, to the commencement of this suit. As early as 1807, the First Presbyterian Church was incorporated, and from that time exercised exclusive ownership over the grounds in respect to the grave-yard, and other appurtenances. A great deal of other matter was involved in the litigation, which does not affect the decision *of the court. At the trial, the defendants claimed the protection of the statute of limitations. But the court instructed the jury that the statute did not run against the claim of a town or city to property dedicated for public uses. The error of this instruction was one ground alleged for a new trial.
    Fox, for the defendant:
    I insist the court erred in charging the jury that the statute of limitations was no bar, although an uninterrupted adverse possession of the premises should be proved for more than twenty-one years.
    It is not pretended that an individual would not be barred by the like adverse possession, but it is contended that the public, that is, the city of Cincinnati, is not to be affected by the statute of limitations, because she is a sort of sovereign so far as her sphere of operations extends. I admit that statutes of limitations do not bind the sovereign power of a country, unless express provision is made therefor. But I find no case, nor do I believe a case is to be found, where any less a portion than the sovereignty of the whole state has been held exempt from the full operation of the statute. Let us look at the principle on which the exception rests. It is said in some of the books to rest on the supposition that the sovereign is too busy or too much occupied to pay particular attention to his rights, as an individual can. 1 Black. Com. 247. In other cases, it is said the exemption is founded upon public policy, that no negligence or laches can be imputed to the government or sovereignty of the country. 2 Mason, 314. Now the principle, when once admitted, must and does apply to' all actions, real and personal; and if the city of Cincinnati can not be affected by the statute of limitations in an action of ejectment, she is not barred in any action of debt or assumpsit.
    Again, if the city of Cincinnati is not to be affected by the statute, because a portion of the sovereign power is delegated to her in her corporate capacity, the counties and the townships, and all the other subdivisions of delegated power are not embraced. Again, in this very case, we have two portions of the sovereign power delegated. The city claim a portion of the sovereign power, and so does the county; they are both claiming the right of possession to the same identical piece of land. Here we see the sovereign power is divided, and the separate portions are contending against each other — one part of the sovereignty suing the Mother part. Can a ease be found like this, in which a statute has been held not to apply? This exemption, on the part of the sovereign in monarchical countries, is generally admitted to be an attribute of sovereignty. Angeli on Lim. 369; 18 Johns. 229; 5 Bac. Abr. 551-562.
    It is an.attribute of sovereignty, also, to be totally exempt from suits; but surely the city does not claim that she can not be sued. In the case of Paine v. Commissioners of Portage County, the defendants claimed the benefit of this attribute of sovereignty, and contended that the county could not be sued; but the court, consisting of Judges Lane and Wright, say, “their claim of exemption, on account of their sovereign character, can not be recognized. They are but a corporation, performing certain public functions; not lords paramount or sovereign.” Wright, 417.
    But I have said I could find no case where any exemption from the operation of the statute has been sustained, unless the king or state, in other words, the whole sovereign power, was the plaintiff. If such cases can be found, I presume the plaintiff’s counsel will produce them. On the other hand, I do find cases somewhat analogous, in which it has been held that the maxim “nullum tempus,” etc., is not applicable to a claim like this.
    The lord proprietary of Maryland, for instance, can not shield himself under this maxim, nor can a bishop. 2 Harris & McHenry, 132-138. Nor can the king confer his privilege. Ib.
    A corporation can not shield itselt under the maxim, for a corporation may be disseized, and may become a disseizor. Angeli on Cor. 103, 308, 310; 4 Serg. and Rawle, 317.
    If the city is a mere corporation, like unto the counties of our state, it would appear to me these authorities are conclusive.
    Why should not the city of Cincinnati be affected by the statute of limitations in an action of ejectment, as well as in an action of debt or assumpsit? Why should not time heal up and cure defective titles where the city of Cincinnati sets up a claim, as well as where one of her citizens asserts title.
    I can perceive no great reason of public policy calling for the exemption of the city of Cincinnati from the operation of the statute. If the object of the statute is to give repose to the community, why should this city be permitted to interrupt that repose? This church, and those claiming under it, have been in *the peaceable and uninterrupted possession of this property for forty-seven years. The town, as early as 1804, began to assert her rights as to public property. The claim to the common was litigated with Williams in that year. Is it not strange that at that time this claim should have been permitted to rest? I do consider, and always have considered the statute of limitations as a complete bar to the claims set up by the city. Whether we consider the statute as intended to dispense with the production of evidence which has been lost, or whether the lapse of time is considered as conclusive evidence of an abandonment of claim, the reasons for its application are, if possible, much stronger than in ordinary cases. If it is true, as Judge Burnet supposes, and as he was told, that the old inhabitants had agreed that the south half of the block should be occupied by the'Presbyterians fora church and burial ground, and that such agreement would operate as a bar to recovery, as this court instructed the jury, why does not the statute operate ? Why not let the statute operate, as well as to presume a grant?
    Again, it is well settled that the non-use of a highway for twenty years affords a presumption of a release or surrender. If a presumption of a surrender can be made against the public in case of a highway, why not in this case ?
    Hammond and V. Worthington, for the plaintiff:
    The question of .the statute of limitations remains to be considered. No authority or precedent, exactly in point, is found. The decision must therefore now be made upon principle and analogy.
    The original common law doctrine rests on the legal maxim, “nullum tempus oocurrit regí1’ — time does not obstruct the rights of the government. The true principle would seem to be this: the neglect of the public functionaries shall not take away the public rights. And the point of good policy, in this maxim, is, the discouragement of individual cupidity in making efforts to prey upon public property. The case before us presents a salutary admonition of the value of this policy.
    It is argued that this privilege appertains only to absolute sovereignty. It has been held applicable to both the government of the United States and to the government of the states. Neither are absolute sovereignties. The entire sovereign power is divided between them. Both have a portion of political power, of a legislative, judicial, and executive character. With all these, to a ^certain extent, town corporations are invested. They create offenses, levy taxes, impose duties in their legislative character. And all these they enforce in their judicial and executive character. They bear a much stronger analogy to the state governments, in our divisions of powers, than to the boards of commissioners, „or to a lord proprietor, or to a bishop under the ancient regime.
    The convenience of repose is applicable to all cases where the government seeks to assert rights against individuals charged with usurping those rights. The arguments thence derived, by the defendants’ counsel, go to the whole doctrine of exception as strongly as to the case of a town corporation.
    
      The statute of limitations is a fair defense where it is strictly applicable, but before it can avail, a case must be brought fully and clearly within its provisions.
    The first available statute, in Ohio, was enacted January, 1804. 1 Chase, 393. The law of 1795, even if of obligation, did not embrace the action of ejectment. This law of 1804 provides for ejectments in section 2, and employs this phraseology: “No person or persons shall hereafter sue, have, or maintain any writ of ejectment,” etc. The act of January 25, 1810 (1 Chase, 655), uses the same terms in respect to ejectments. And such were the statutory provisions until the act of February 25, 1824. 2 Chase, 1403. This latter act is differently worded. It runs thus: “All actions hereinafter mentioned shall be commenced within the several times hereinafter limited after the cause of such action shall have accrued, and not after : first, actions of ejectment,” etc. Can the statutes of 1804 or 1810 be construed to embrace the case of the city? Was the city a person, within the meaning of the terms employed? Our judgment would be that the case of the city is not embraced, even if a more general phraseology would embrace it. There was, then, no statute to affect the rights of the city until 1824, and the period of that act has not run.
    Again, in a legal point of view, was it proper to consider the church a disseizor, under all the circumstances of the case, until' the transactions of 1821, when she made private sales, in perpetuity, and disinterred the dead?
    J. C. Weight, on the same side:
    1. As to the statute of limitations. Against the public, lapse *of time works no destruction of right. That, I suppose, is beyond dispute. But it is claimed that the city is a mere corporation, subject, as natural persons, to the operation of the statute of limitations. Even if the court should hold this true, in respect of absolute rights in corporations, we think the case in hearing not within its principle. In cases where the corporation has absolute property, with complete power to use and alienate, it may be true that the right is subject to the same rules as affect and control the rights of natural persons. But where the right of the corporation is merely supervisory and preservative, without the power to convey away, change, or alienate, the beneficial use being in the whole public, the statute will not affect the right. The neglect of the public officer, who is only clothed with author■ity to preserve the public use, will not work a forfeiture of the ■right in his case. He can not directly convey or dispose of the right; neither can he indirectly, by mere neglect or omission, ■pass away or destroy the estate. The city, in this ease, does not •own the fee of this land; it is not the owner of the estate; it has the right to possess, control, and secure the public in the free use and enjoyment of it.
    2. It is claimed that the use by the church is in accordance ■with the dedication, and conclusive of the design of it. Suppose it should be held that the mere occupation’of a portion of this ground by a church is a us'e consistent with the dedication, that ■only covers the ground so used, as to which the verdict is for the defendants, with a mere right of ingress and egress. This is no .ground for disturbing the verdict. A publiesquare in atownmay possibly be used as the site of a public church, school, or market-house. The right so to use does not necessarily include the power •of converting the property so used. On the contrary, such occupant is precluded from any step tending to the destruction of the right under which he'enjoys the use. Like the tenant, he is required first to surrender the possession he received, before he can question the right of his landlord.
    No length of time, connected with such mere use, can change the relation of the parties to the subject, or enable the occupant of the right of another, by mere volition, to become an occupant in his own right to the exclusion of the person under whom he entered. Suppose the county to have erected a court-house in the street of a town, and, without objection, to have used the house ■ for half a century, until it became decayed and useless, or it is destroyed by accident, or it is removed to promote the convenience *of the public, would such use give the county a title to the fee, and right to dispose of the ground so used as private property ? No one can pretend so. In the ease of the town of Gallipolis, this court decided that such claim could not be sustained, even when the legislature of-the state had stepped in to aid them.
    Storer, in reply, for the defendants :
    The argument we have already presented, on the statute of limitations, we believed at the time-it was made, furnished a full answer to the plaintiff’s claim, and all the reflection we have since given to the subject has strengthened our conviction.
    We assume, that the rule of “ nullum tempus,” as relied on by the plaintiffs, is resolved at last into a question of prerogative, and ■can therefore attach alone to the sovereign power of the country. And it is no useless inquiry in the application of the principle, to ascertain why it is that prerogative is thus held to be unaffected by the lapse of time; to say nothing of the disposition to limit the exercise of this attribute in all constitutional governments, or of the disastrous affects which have followed its application to the monarch as well as the people, it is sufficient for our purpose to exhibit the ground upon which it is claimed.
    Mr. Gwillim, in his notes to Bacon’s Abridgment, title Prerogative, vol. 5, page 489, defines the power to be “ the special pre-eminence which the king hath over and above all other persons, and out of the ordinary course of the common law, in right of his royal dignity.” Hence he is the universal occupant, as all property is presumed to have been originally in the crown; wherefore all derelicts and escheats, the right of dominion in ail seas and great rivers, ports and havens, appertain to him. Being thus the superior power of the state, “ he is presumed from the dignity of his office and person to be incapable of doing wrong, and even, where an injury is done by any of his officers, he is under the happy inability of doing wrong, because in his political capacity, he acts by those whose powers are limited by law.” . 5 Bac. 550-•So where the king’s right and that of the subject meet at one and the same time, the king’s shall be preferred, as the rule is “ detur digniori.” Wooodward v. Fox, 2 Tent. 268, ed. 1726; the case of the Abbott of Strata Mercella, 6 Co. 24.
    On this prerogative right, it is held, that the king is not bound by acts of parliament, except in those cases to which we have referred in our former argument.
    *While, therefore, “ vigilantibus et non dormientibus jura .subveniant ” is a rule for the subject, “nullum tempus occurrit regí” is the king’s plea, for there is no reason that the negligence of his officers, or their compact or combination with the adverse party, should cause him to suffer. Adm’rs Sheffield v. Radeliffo, Hobart, 347. It is also said his interests are certain and permanent, and no laches can be therefore imputed to him; hence there can be no occupant against the king, Co. Lit. 41, 46; nor yet a tenant at sufferance, nor can he be disseized. 5 Bac. 563.
    Thus far the origin and extent of the principle; but the principle itself, as we have heretofore remarked, has from time to timo been limited by statute, and prescription is now pleadable against the crown, by Sir George Sackville’s act of 9 Geo. 3, e. 16, and-statute 32 Geo. 3, c. 58.
    While, therefore, the king thus protected may sue in any form of action the subject, he is liable to no process in his public capacity; the remedy of the subject is not by suit, but by petition to the crown’or to parliament, as the circumstances of the case-may indicate.
    It is believed that in England no case can be found where the grant of a charter to a municipal corporation by the king, or the claim of a charter by prescription, has ever been supposed to attach to either body the attribute of prerogative; on the contrary, the power is confined to the king alone, and can not be imparted to another. Such bodies are but legal- entities, artificial in their organization, but really possessing the attributes of private persons; they are, therefore, liable to all legal process themselves, while they are at liberty to use it against others. They may hold land, and the privileges arising from it, and they may lose-their right by misuser or non-user; they may disseize, and are, therefore, liable to ejectment or trespass for their acts. They may appropriate private property for public use; but if they refuse an equivalent, they are liable to the party injured at law, and can not compel him to ask for indemnity by petition to those who represent the corporation in an executive or legislative capacity.
    The doctrine thus examined, as applicable to our jurisprudence, must be taken with much caution, and subject to all proper limitation, in a country where an effort to extend the rule would endanger its existence for such purposes that it might be just to retain it.
    The principle, to a certain extent, has been acted upon in the United ^States, and we will again examine the cases where it has been adopted to prove not only how carefully it has been guarded by the courts, but to show more especially that it never was suffered to attach to the government in any other right than that of sovereignty.
    
    In Staughton et al. v. Baker et al., the action was brought by the inhabitants of several towns in Massachusetts against several individuals to recover for certain alterations, which, by vote of those towns, had been directed to be made in a mill-dam owned by the defendants. The reason of the alteration was, that the public right of fishing was interrupted by the obstruction, and it therefore became necessary to protect it. On the trial, it was urged that the defendants held title by grant in 1633, which was confirmed by the legislature in 1634, and therefore the plaintiffs could not recover. The court, however, decided that the grant was made subject to several implied limitations, one of which was to protect the rights of the public to the fishery, and that every owner of a mill-dam held it under the condition that such public .right shall not be interrupted by his water privilege. And in conclusion the court further say, “That this limitation, being for the benefit of the public, is not extinguished by any inattention or neglect in compelling the owner to comply with it, for no laches can be imputed to the government, and against it no time runs so as to bar its rights.” 4 Mass. 528.
    Here the point is resolved into a question of sovereignty alone, as the government represents the same power in this case as the king would under similar circumstances in England, for the reasons already given. It can not be supposed that a grant can not be presumed even against a town or city from long possession; and yet if the rule we contend for is not the sound one, no estate can ever pass from a municipal corporation except by deed. But .such is not the law, for Judge Parsons says, in the ease just cited, page 528: “The ancient grants by towns are very loosely expressed, and when a fee was intended, words of inheritance were seldom used. When a long possession by the grantee, his heirs or assigns, has followed, the original grant has uniformly been eon.sidered as a grant of the fee.”
    The opinion of Judge Story in United States v. Hoar, 2 Mason, 314, is predicated upon the same ground which is assumed by Judge Parsons; “for,” says he, “the prerogative right of the king, in relation to acts of limitation in England, is, in fact, nothing more than a reservation or exception introduced *for the public benefit, and is equally applicable to all gov.ernments; and thus the general words of a statute ought not to include the government, or affect its rights, unless the construction ■be clear and indisputable upon the text of the act.”
    In Kemp v. Commonwealth, 1 H. & M. 84, the rule was confined to the State of Yirginia, nor was it contended in argument that it could include any other representative or sovereignty.
    
      So in Nimmo’s Ex’rs v. Commonwealth, 4 H. & M. 71, Judge Roane cautiously observes, “I will merely say at present that-within my observation the state is not in general, and from the nature of the case, can not be on an equal footing with private suitors in respect of diligence, attention, etc., however vigilant and faithful its officers may be, and that, therefore, the reason of this pre-eminence may be in some measure as applicable to the present government as to the former.”
    Judge Tilghman, in Johnston v. Irwin, 3 Serg. & Rawle, 291, follows up the same decision, “ that the commonwealth could not be affected by acts of limitation.”
    And(the superior court of South Carolina, in Lessee of Allston v. Saunders, 1 Bay, 30, decide that “no time or length of possession runs against the state.”
    
    In New York, it is held that the people are not bound by the statute of limitations, unless specially included in its provisions. The People v. Gilbert, 18 Johns. 227.
    In the case of the United States v. Kirkpatrick, 9 Wheat. 735, Judge Story adopts the principle, but limits it entirely to the government.
    
    It will be seen with what caution our judicial tribunals have admitted the rule, how clearly they have defined it, how scrupulously they have guarded it.. On the other hand, whenever the-maxim alluded to has been asked to be applied in other cases, so far as we can find, the effort has always been unavailing. As in Kelly’s Lessee v. Greenfield, 2 Har. & McH. 137, the point was-made, whether the lord proprietor had the same rights with respect to Maryland, that the king had in England, in consequence of the charter to him by Charles I, as lord of the fee; but the court then decided, as early as 1785, “that the maxim ‘nullum tempusoccurrit regi,’ had never been applied, that we can find, to any but the king himself. And it is a prerogative maxim, which it must cease to be, whenever applicable to the subject.” And again : “ In the hands of the crown it *is an inconvenient rule, but being placed there, it is still permitted to continue.” It will be recollected that Lord Baltimore held directly from the crown, with all the rights, regalities, and prerogatives, which the Bishop of Denham enjoyed in that palatinate, to be held of the crown, as of Windsor Castle in the county of Berks, in free and common sockage, and not in capite; he was further authorized to make all laws for the province, and held full executive power therein; yet he was denied the benefit of the principle, and placed on the same footing with the subject; and this when he embodied in his own person the property by grant, the whole territory, and the exclusive authority over it.
    The same point is also decided in Russell v. Baker, 1 Har. & J. 91. So in Birch v. Alexander, 1 Wash. 37, where it is said by the court, “that either the reason of the rule extends, or the rule itself was ever applied to .preserve the title of a lord, we do not admit.” In the case before the court, a corporate right strictly is only involved, for the claim is to the square for the public use of the city, and it is to be ascertained whether the corporation who sue, possess a different character quoad this particular subject, than they would hold where the action in debt, case, or simple trespass, for if in one state of fact, they are concluded by the lapse of time, the rule we regard as equally applicable to every possible ease. The criterion can not be the nature of the claim, but the character of the parties.
    It has already been decided by the court, in the case of Paine v. Commissioners of Portage County, “that their claim of exemption on account of their sovereign character could not be recognized — they are but a corporation, performing certain public functions, not lords, paramount or sovereign; ” and yet those defendants were, to every legal intent, in the same relation to the inhabitants of the county for whom they acted, as the present plaintiffs are to the people of Cincinnati. Wright, 417.
    So in New York, in North Hempstead v. Hempstead, 2 Wend. 137, a claim was interposed by one township against the other for certain lands, which it was insisted belonged to both in common. It appeared there had been a division of the townships, and that part of the property in dispute was situated in each of the portions set off for the original township; it was proved also that each township had regulated the several portions of property within its limits, and had not interfered with that in the other. On a review of the case, Judge Savage decided that *the portions of land in each township must be solely controlled,by the body within whose limits it was situated, and that even if it was not thus to be regarded, and a right existed in the original town after the division, “ that that right was barred by lapse of 
      
      time.” Here is a clear recognition of the principle, that municipal corporations are within the statute of limitations.
    The argument, from inconvenience, never applies to corporate bodies, however extensive, where their existence depends upon an exertion of the sovereign power of the state. The neglect of municipal officers to perform their duties, and the consequent loss of the public revenue, or injury to the public interest, furnishes no excuse for the corporate body itself. That body was created with limited powers, but nevertheless to supervise and protect the public rights, and as those who legislate, or carry that legislation into effect, are elected by the public, they are, to all legal purposes, the agentsof that public, who must be responsible for their acts, whether of commission or omission.
    
    
      We have already said the power is confined to the state, as an incident of sovereignty merely, and can not be .imparted to, or conferred upon a subordinate body. Whenever the corporation is created, and its franchises attach, it is the creature of the law which gave it birth, having the privilege o'f mere municipal government, for the purpose, so far as the health, safety, and general prosperity of the city are concerned, of legislative action. But the body corporate has no legal exemptions; it is bound for all its excess of authority, and may be sued in any form of action that the right sought to be redressed may require for its satisfaction. But the government is without the rule, and can not bo subjected to suits, nor controlled in her acts, but by the interposition of the legislativo power, which alone can limit her pretensions. We conclude, then, that the plea of the statute of limitations furnishes a complete answer to the claim of the plaintiffs.
   Judge Lane

delivered the opinion of the court:

The principle, that the sovereign power of a state is not bound by statutes of limitation, without express words, obtained in the earliest stages of the common law, and has descended to this day. This rule is sometimes of odious application; but it is adopted as incidental to sovereignty and necessary to preserve against neg-ligence *or cupidity, those rights which the state has acquired or retained.

This immunity, however, seems to be an attribute of sovereignty -only. No ease is found in the books which exempts any other description of person, whether natural or artificial, from the oper.ations of the laws; and none of the reasons for the exemption, apply with much force to municipal corporations. The law imposes upon them the duty of defending the interests which they are created to hold, and has conferred every power necessary to this end. 'When the property is their own, the statute has been always held as binding; when their land, or franchises are of public character, $Tie public which they represent, are principally members of their own body, sufficiently vigilant to watch their own interests, and sufficiently powerful to defend them. The rights of the corporation, therefore, seem well enough protected without invading the 'letter of the statute. And the very loose and indefinite character of some of these rights renders the protection of the law peculiarly -necessary for the security of occupants.

New trial granted without costs. 
      
      By the new French code, this prerogative is expressly renounced. “L’Etat les Etablissements Publics, et les Communes, sontsoumis aux memes prescriptions que les parliculiers, etpeuvent egalement lesopposer.” Code Civ., sec. 2227.
     