Inasmuch as the district judge sustained the plaintiff's objection to the introduction of evidence offered for the *Page 530 purpose of proving ownership of the property, and restricted the offerings of evidence to the purpose of showing who was in possession of the property, the judgment rendered by the district court, in so far as it decreed the city to be the owner of the property, was unauthorized by the evidence. The judgment should merely have dismissed the plaintiff's possessory action, reserving her right to bring a petitory action against the city. A possessory action against a municipality, to oust the municipality from the possession of property that is being used for a public purpose, is an improper and unauthorized proceeding, because the claim of the municipality that the property is public property, and is therefore not subject to private ownership, necessarily puts at issue the question of ownership, and the right of possession in such a case is merely an incident or a necessary consequence of the main issue. Bringing a possessory action in such case, instead of a petitory action, against the municipality, is a begging of the question of ownership. That ought to be the doctrine of our decision in this case, without expressing an opinion as to whether the city has the legal right to occupy as public property the property which the city is in fact — whether rightfully or wrongfully — using and occupying as public property.
As I understand, the decree now rendered on the second rehearing of the case merely dismisses the plaintiff's possessory action, and reserves her right to bring a petitory action, which, if brought, will put at issue the question whether the city has a right to occupy the property as public property. With that understanding I concur in the decree. *Page 531