
    Wright and others v. The Town of Victoria.
    Where power was given by statute to a municipal corporation to sell any lands belonging to it: Held, That the corporation was not authorized to dedicate the timbered land to the free and common-use of its citizens, so as to restrain a future sale: Held, also, That citizens who purchased lots from the corporation upon the faith of the ordinance purporting to malte a dedication of the timbered .lands to the free and common use of the citizens were not entitled to an injunction to restrain the sale of the timbered lands.
    Appeal from Victoria. The appellants filed their, petition, praying an injunction against the corporation of the town of Victoria. In tlipir bill they, in substance, set forth that the town of Victoria received a donation of four leagues of land, under the colonization laws, from the State of Coahuila and Texas; that afterwards it was incorporated by the Republic of Texas, and that the town council, under the charter of incorporation, in 1839, passed a resolution whereby the timbered lands npon the outlots belonging to the town was declared to be reserved forever for the common use and benefit of tlie citizens, with a proviso that the people of the town might, by a general vote, authorize tlie sale or other disposition of tlie rights thus secured; that the complainants, induced by this resolution or-ordinance, and confiding in tlie promises of advantage thus held out to them, purchased lauds within the town limits, and became citizens thereof; that, notwithstanding the' provisions of tlie ordinance and rights thereby vested ill complainants, the town council had recently determined to sell a portion of the timbered land, and appointed a day for such sale; that no pressing necessity existed for this action of tlie town council, inasmuch as a sufficient revenue could be derived from other sources; and that the sale of this land would greatly lessen the value of tlie prairie land already parol iased by the complainants, and expose them to much inconvenience and irreparable loss. An injunction was awarded. The corporation demurred to the petition, and tlie District Court sustained the demurrer; from which decision the appellant brought Llie case by an appeal to this court.
    
      Newcomb and Mitchell, for appellants.
    This case is a special injunction sued out by tlie above complainants against the defendants, composing tlie town council of tlie incorporated town of Victoria, to restrain them perpetually from selling certain timbered lands, part of tlie town tract of said town, which liad been reserved for and dedicated to tlie public common use of tlie citizens by an ordinance of tlie town council made in 1839. A town proper was" laid off, with its streets and squares, at the same time and by same ordinance.
    
      The complainants respectfully submit. Hint there was a clear and absolute, dedication 1o (In- public use of tins si reels, squares, and commons (timbered laudé) of llm I own by the ordinance ]3'j’j¡ of rim town council in lililí), sot ov m thsM-imiplaiiiiuits’bill. (OineiniiuSl Tin ' wwioe of While, G Pei. R., -i i; Pittburg Case, 6 Pet. R., 131, 498, McConn, c. The. Town of Lexing, 12 Wheas., 582; Beatty v. Kurtz, 2 Pet. R., 261; New Orleans Case, 10 Pet. R.. 745, 720.)
    They submil that the town council had full authority to make surh.dedieation, and that- it was within the. general purview of their (rust. The. bill alleges and the demurrer admits that the free and common use of the timbered lands was es.-ential to the comfortably existence of the citizens; Lhat the growth and prosperity of the town ha; b-'en in a great measure effected by this free and common right, as it enabled persons to erect buildings and make fences and oi lier improvements upon the timbered lots who could not, without lilis right, have made any such improvements, and who consequently would not have purchased property or settled in.the town; Unit the prairie or untiin-bered ontiots would have been utterly valueless wiilunit this privilege or right appurtenant, as no means within the ¡lower of the citizens existed of procuring’ cither building timber, fencing, or fuel, except from t lie town tract; and that, in consequence of this dedication, the. otherwise valueless lots sold at $5 and upwards por aere, and brought into the’treasury of the corporation a large sum of money, fully compensating ilio town for the value of the timbered lands dedicated.
    In view of these facts, the complainants submit that the town council liad the same right to dedicate the Umber to the free and common use and’ enjoyment of the citizens as they had to appropriate the streets and squares of the town to such use, and that the right to dedicate is as ample in the one case as in the other, and stands precisely ou the.samó basis. (United States v. City of New Orleans, 10 Pet. R., 715; 1 Bl. Com. 476, 478.)
    To suppose that because the streets and squares of the town have not been actually sold and the fee therein divested by a sale, therefore the present or a subsequent town council can sell them, and thus deprive the citizens of their free and common use, would, the complainants believe, be an absurdity too apparent to merit any attempt at refutation. A dedication to public uses stands upon an entirely different basis from ail ordinary sale,; no grantee need be in esse at the time; no grantee in particular need be named in the act of dedication; no formalities of transfer (as the signing and sealing a deed) are necessary. (Lutheran Church Case, cited in the Cincinnati Case, G Pet. R., 498, and the authorities generally before cited.)
    .The bill also alleges that the appropriation of these timbered lands to their free and common use ivas acquiesced in by them, and that they have exercised tiie right conferred thereby freely and without restriction to the present time, ten years.
    Complainants submit that the town council of 1830 had the right to make this dedication lo public uses, because it was necessary for the advancement and prosperity of the town, then starting into existence, and absolutely essential to the use of other town property; that they did make the dedication, and that thereby tlie right to those lands became, in common with the streets and squares of the town, specially vested in the citizens for their free and common use and enjoyment, which not oven the Legislature-can now divest.
    The remedy sought by the complainants is the proper one. (2 Story Eq., secs. 892, 913, 913, 924-927, note, 934, 958; Eden on Injunctions, 138.)
    
      Allen, for appellee.
   Lipscomb, J.

By an act to incorporate the city of' San Antonio and other towns therein named it is enacted in the Stli section: “That the said council, in conjunction with the justices of the Comity Courts,‘are hereby empowered and authorized to sell and alienate such public lots or parcels of land as may lie within their jurisdiction, and to which there is no legal claim or title, and also to dispose o£ such houses or other buildings as may have formerly been (he, property of the coi-po ration of the said city; and tho. 'council may sue for and recover all the debts, forfeitures, &e., accruing or due to the said corporation, the proceeds of such salt's to be appropriated to tho erection or repairs of a court-liou.se, jail, and other public edifices as may lie deemed most lit, and to the erection and endowment of a public school.” This is the section that confers on the corporation the power to soil, and enumerates the objects for which such sale may he made; but it does not confer the power on (lie. council to prohibit or to restrain successive boards from discharging the like power. This power will exist as long as there is any such property appertaining to the corporation unsold for tho authority to act upon. The appellants set up a claim under an ordinance adopted by a council exercising no jurisdiction rightfully, not conferred by the charter of incorporation. All acts not authorized by the charter arc void, and could confer no legal rights. If in tile sale to the appellants a condition has been coupled with siich sale that the timbered lands or any other lauds not sold shall remain unsold, as a common appurtenant to the purchases made by appellants, such conditions, being iu violation of the charter, could vest no such right in the purchaser. Whether such want of authority to sell, with such privileges, would afford to the purchasers a right to a rescission of the contract is not now before us for adjudication. There is certainly no ground for relief shown iu the bill, and it was right and proper to sustain the demurrer; and the judgment is affirmed.

Judgment affirmed.  