
    *John A. Gall and others v. The City of Cincinnati and others.
    1. The general power conferred upon cities to establish and regulate markets and market-places, is a continuing power; and its exercise at one period by establishing a market-place and erecting a market-house in a particular locality, will not prevent the city council from removing such building, or abandoning such locality for market purposes.
    2. An order for such removal or abandonment by the city, in the reasonable exercise of the discretion vested in it by law, constitutes no ground for taxpayers, as such, to prevent by injunction the execution of such order.
    
      3. Whore a municipal corporation acquired real estate by absolute title in fee, the fact that the property was purchased for the purpose of establishing a marlcet-spaee, and of erecting thereon a market-house, and the further fact that the property was accordingly so used, will not make it trust property to be used only for market purposes.
    4. In establishing and maintaining a market on the property, the corporal,ion was only exercising its proprietary rights therein, and such use of the property, though it may have continued for forty years, will not constitute a dedication of the land to the public for market purposes.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Hamilton county.
    The city solicitor of Cincinnati having refused to bring the original action, it was instituted by the plaintiffs in error, who were the plaintiffs below, under the authority conferred by the statute (S. & C. 1559), to restrain the corporate authorities of Cincinnati from an alleged abuse of corporate power. The object of the suit was to obtain a perpetual injunction against the removal of the Fifth-street market-house. It is stated in the petition to be the purpose of the city council to destroy the market-house, and to devote the market-space to another and a wholly different use.
    The character of the title of the city to the grounds occupied by the market-house, and to so much of the market-space as is involved in the controversy, is stated; also the acts of the city authorities showing the intent alleged.
    The city, in its answer, states that it has determined to take down the eastern half only of the market-house, and to throw open the ■space so vacated as and for a market-space.
    The answer further sets up that the city has accepted an offer from Henry Probasco to erect, at his expense, on the ground now o(M] covered by the eastern half of the market-house *a free public drinking fountain, which, it is averred, will be an ornament to the city, a work of art of great and lasting benefit to the owners of the adjacent lots, and a convenience to those who may frequent that part of the city for market or other pin-poses, and which, it is said, is a proper and frequent addition to market-spaces, and not inconsistent 'with the use of the ground for such purpose.
    It-is also denied that the city has passed any ordinance prohibiting or restricting the use of any part of the square between Walnut and Vine streets (being the only part of the square in controversy) for market purposes, but, on the contrary, it is averred that said square, in all its parts, remains and is a public market-space of the city; and it is denied that the city intends to devote any part.of it to any purpose inconsistent with that of a market-space.
    It also stated that the present market-house is a very old and unsightly edifice, which has been declared a public nuisance by the board of health of the city; that during the demolition of the eastern half it will be impracticable to continue the use of the western half, and that after such demolition it may prove best to remove the western half altogether and erect another structure in lieu thereof, but that the defendant has come to no conclusion as to the policy then to be pursued, the same remaining open for future discussion and decision. That for these reasons the city, in the exercise of its discretion, determined not to lease the stalls in the western half of the market-house at present, and it is insisted that it had the legal right to so determine.
    The deeds conveying the western half of the square in controversy contain certain limitations, hereafter stated, differing in this respect from the conveyances of the eastern half, and the city, by way of cross-petition, asks the court to put a construction upon the deeds conveying the western half, and to instruct it whether, if it should hereafter seem best to the city council to remove the west half of the market-house, and devote the entire space between Walnut and Nine streets to the sole use and purpose of a market-space, without any market-house thereon, it would not bo a full and faithful compliance with the terms of said deeds.
    *The plaintiffs, in their reply, deny that the city has deter- [565 mined or intends to throw open the east half of the square in controversy, for a market-space. They aver that the erection of the proposed drinking-fountain will be inconsistent with the use of the premises as a market-space, to bo used for market purposes; that it is the intention of the city, in suffering the erection of the proposed structure, to destroy the use of the whole space between Walnut and Tine streets for market purposes, and to abandon such use altogether; and they deny that the city has any legal right to devote said market-space, or any part thereof, to any other purpose than for the use of a market-house, and market purposes.
    The district court found that the use of a portion of the eastern half of the market-space described in the petition, for the erection of a free drinking-fountain for the use of the citizens, as proposed, would not be in any way inconsistent with the use of such ground for market purposes, and dismissed the petition as to said eastern half. As to the portion of the western half conveyed to the city by deeds containing limitations, the court ordered that the provisional injunction theretofore granted as to the western half, be modified so far as to restrain the city from applying the premises conveyed by said deeds to any use except erecting a market-house thereon, or for a market-space, and as so modified the injunction was made perpetual; and as to the portion of the western hálf conveyed to the city by deeds in terms absolute, the petition was dismissed.
    A motion for a new trial having been made, upon the grounds (among others not deemed material to state) that the finding and judgment were against both the law and the evidence, and having been overruled, a bill of exceptions was taken embodying all the evidence.
    It appears from the bill of exceptions, that the part of the Fifth-street mai’ket-space between Walnut and Yine streets is in the form of a rectilineal parallelogram, its length between these streets being four hundred feet, and its width being one hundred and forty-one feet. Sixty-six feet in width off of the northern side of this space was laid out as one of the original streets of the city. The remain-566] der of the space, ^consisting of a strip seventy-five feet wide, and extending the whole distance from Walnut to Yine street, is held by the city under several deeds of conveyance; and it is from the character of the title to this portion of the ground, that the plaintiffs in error seek to reverse the judgment of the district court.
    In the year 1827 the city council of Cincinnati determined to extend Fifth-street mai-ket-space between Walnut and Yine streets, so as to make a space for market purposes between those streets corresponding with the space already existing between Main and Walnut. To accomplish this object, a resolution was adopted declaring that a part of lot 167 (being the east half of the strip seventy-five feet wide above referred to) and a part of lot 192 (being the west half of said strip) would be required; and it waB resolved not to make the extension unless the citizens more immediately interested should deposit in the city treasury the sum of $3,500, to bo applied in discharge of the claims for the real injury which might be sustained by the proprietor of so much of lot 167 as might be appropriated for the extension, and that so much of lot 192 as might be required for the purpose be secured to the city.
    The subsequent proceedings on the part of the city to make the appropriation, resulted in its obtaining from Adam Moore, by two deeds of conveyance in fee simple absolute, the eastern half of said strip of seventy-five feet in width, the consideration of one of the deeds being $2,500, and of the other $4,500. Five thousand dollars was also paid a lessee of Moore, in discharge of his claim for damages on account of his lease.
    The western half of said strip was conveyed to the city by seven different deeds, five of which contained an express declaration of the use to be for a “market-house and a market-space,” one for a “market-space,” and one was absolute.
    The market-house occupies a width of more than sixty feet, is about equidistant from the sides, and extends the whole length of the square.
    The proposed fountain is in the form of an ellipse. Its extreme length is seventy-nine feet; its extreme width fifty-four *feet, [587 and the width of the basin forty feet. It will not occupy as much space in width, sidewalks and all, as the present market-house, and the streets on each side of the market-house are now used as market-spaces ; while the basin itself is more than twenty feet narrower than the market-house, and the outside length, including the pavement, is little more than one-sixth, while, excluding the pavement, which is open as a market-space, it is only one-tenth of the length of the market-house.
    Proceedings of the board of health were given in evidence by the defendants, showing that the market-house had been declared a nuisance by that body.
    Testimony was also given showing that in cities on the continent of Europe, fountains of the character of the one proposed are frequently found in the public market-places.
    The defendants further gave evidence tending to show that the erection of the proposed fountain would not materially interfere with the use of the square for market purposes; and the plaintiffs gave evidence of a contrary tendency.
    Numerous errors are' assigned, but they are all embraced in these: That the court erred in dismissing the petition as to that portion of the property held by the city by absolute conveyances; and in modifying the injunction as to that part held for the specified use; and in refusing a new trial.
    
      Kebler & Whitman, and Thos. C. Ware, for the motion.
    
      Walker & Conner, city solicitors, contra.
   White, J.

The ground mainly relied upon in argument, for the reversal of the judgment in this case, is, that the title to land acquired in 1829, for the extension of the market-space, from Walnut to Tine streets, is held by the city in trust for market purposes.

The trust is supposed to arise from the terms of the conveyances, as to the part of the property embraced by the deeds which declare the use, and as to the other part as to which no use is declared by the deeds, it is claimed to arise from the object for which the property was acquired by the city, and from the ordinances of the city 568] in respect to it. *From the grounds thus assumed, it is argued that the removal of the market-house, and the erection of the fountain, will be an abuse of the trust, and a diversion of tho trust property. •

This view we regard as erroneous. None of the deeds are properly deeds of trust. All the estate granted, both legal and equitable, is vested in the grantee. The east half and that part of tho west half conveyed by absolute deeds, is vested in the city as an absolute estate in fee. The residue of the property is held by the city as a conditional fee. In the latter case, the estate may endure forever, but it is determinable whenever the property ceases to be used for the purposes specified in the grant, and, when determined, it reverts to tho grantor.

The grantee in this case being a corporation, its capacity to acquire and hold estates, is, of course, limited by its charter, whatever may be the terms of tho conveyance. But we find ample power conferred on the city, by the charter in force at the time of these conveyances, to acquire all such real estate as might be deemed necessary for municipal purposes, and to take therefor the absolute title in fee. This power is independent of the authority given to the city to appropriate property in invitum for certain objects specified in the charter; and the title acquired by purchase is to be determined by tho character of tho conveyance, and is not affected by the character of the estate conferred on tho city in cases of appropriation.

General authority was conferred on the city, by its special charter, to establish and regulate markets and market-places; and the same authority exists under the general municipal corporation act now in force. This is a continuing power; and its exercise at one period, by establishing a market-place and erecting a market-house in a particular locality, will not prevent the city council from removing such building, or abandoning such locality for market jmrposes.

Independent, therefore, of any supposed trust, the fact that the city was allowed by the decree to remove the market-house constitutes no ground for error. The record fails to show any threatened abuse of corporate authority. For *aught [599 that appears, the act sought to be enjoined would subserve the general convenience and welfare of the inhabitants of the city. And whatever rights, under special circumstances, adjacent proprietors, and others having property injuriously affected, may have, an order for the removal of a market-house, or for the' abandonment of a particular locality for market purposes, by the city council, in the reasonable exercise of the discretion vested in it by law, constitutes no ground for tax-payers, as such, to prevent by injunction the execution of such order.

At the time the portion of the property was acquired that was conveyed to the city by absolute deed, being the east half of the strip seventy-five feet wide, it is apparent from the ordinances on the subject, that the object of the city in obtaining the property was to enlarge the market-space, and to erect thereon a market-house. Proceedings were commenced to condemn the property, but they were not consummated. They resulted in the purchase of the property by, and conveyance to, the city, as already stated. The purpose of the city in making the purchase can not be made to limit or qualify the estate granted ; nor will the fact that it was subsequently so used have that effect. In establishing and maintaining a market on the property, the corporation was only exercising its proprietary rights therein; and the claim that such use of the property for the period of forty years constitutes a dedication of the property to the public for market purposes, is without foundation.

The bill of exceptions shows that part of the purchase money was furnished by private individuals. Who they were does not appear. They are referred to as parties who, at the time, were interested. But whatever rights such persons might have against the city, in ease the property should be used for other purposes than were'in contemplation at the time of its purchase, we think it gives no right to other citizens to interfere to prevent its being used for any legitimate municipal purpose.

We do not understand it to be claimed that the granting permission for the erection of the proposed fountain will, be an abuse of 570] corporate power, if it is found that the property *to be devoted to this purpose is held by the city free from the supposed trust. The square in which it is to be located is to be continued as a public market-space. The decree below finds that the fountain will not interfere with the use of the grounds for such purpose; and if it were deemed material to l’eview the finding, we see nothing in the evidence that would lead us to doubt its correctness.

"We suppose that under the power given to supply the city with water, and to improve and regulate all public grounds, squares, and market-spaces, the power of the city to supply water is not doubted. The fact that the structure is to be an expensive work of art can make no difference, as it is to be erected without expense to the city.

Reference is made in the argument of plaintiffs’ counsel to certain provisions in the ordinance, in the nature of stipulations between Mr. Probasco and the city, which are claimed by counsel to be ultra vires as respects the city.

We do not feel called upon to consider the validity of these objections in the present case. They are not set up in the pleadings, and, under our view of the case, we do not regard them as affecting the judgment sought to be reviewed.

Leave refused.

Day, C. J., and Brinkerhoff, Scott, and Welch, JJ., concurred.  